LABOUR

LAW
NOTES
e-Book
Editor Vol. 50 January 2021 Issue No.01
A.L. SOMAYAJI B.Com.,B.L.
Senior Advocate

Associate Editors
R. VIDUTHALAI, M.A., M.L.
Senior Advocate
R. SANKARANARAYANAN, B.Com., B.L.
Addl. Solicitor General, Senior Advocate
V. AYYADURAI, B.Sc., LL.B.
Senior Advocate

P. B. BALAJI, B.A., B.L.

MEHEK ASRANI, LL.B., LL.M
B. VIJAY, B.A., B.L. (Hons.)
R. VISHNU, B.A., B.L. (Hons.)

Publisher
S. RAMACHANDRAN Labour Law Notes
1972 to 2020
A Monthly Law e-Journal reporting
Judgments of Supreme Court of
India and High Courts, with Acts,
Rules, Notifications and Important
Articles under Labour Laws

Mode of Citation
50th Year of 2021 (1) LLN
Publication (Estd.1972)

Reports : 1 to 487

www.llnlibrary.com
 NOMINAL INDEX
Aurangabad Municipal Corporation and others v. Jayant and others ........................................
........................................................ (SC) (Dr. D.Y. Chandrachud, J.) 2021 (1) LLN 32
Central Bank of India v. Regional Labour Commissioner (Central), Dehradun and others............
...................................................................... (Utt.) (Sudhanshu Dhulia, J.) 2021 (1) LLN 470
Chanda Deepak Kochhar v. ICICI Bank Ltd. and others...........................................................
......................................................... (DB) (Bom.) (N.M. Jamdar, J.) 2021 (1) LLN 105
Chandrasinh Relibhai Chaudhari v. State of Gujarat & 2 others ...............................................
................................................................ (Guj.) (Biren Vaishnav, J.) 2021 (1) LLN 195
D.T.C. v. Kanwar Singh ........................... (Del.) (Prathiba M. Singh, J.) 2021 (1) LLN 147
Employees’ Provident Fund Organization v. M.S. Raven Beck Solutions (India) Ltd..............
...................................................................... (Ker.) (A.M. Badar, J.) 2021 (1) LLN 390
Executive Engineer, Division-CPWD v. Bijender and others ..................................................
.................................................................... (Del.) (Najmi Waziri, J.) 2021 (1) LLN 175
Executive Engineer, Electricity Distribution Division and others v. Presiding Officer, Labour
Court, Rampur and others ........... (All.) (Jahangir Jamshed Munir, J.) 2021 (1) LLN 37
Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi ................................
..............................................................(DB) (Guj.) (A.J. Shastri, J.) 2021 (1) LLN 183
Harish Kumar v. State of Himachal Pradesh and Ors................................................................
...............................................................(HP) (Ajay Mohan Goel, J.) 2021 (1) LLN 212
Heavy Engineering Corporation Ltd., through its Chairman-cum-Managing Director, Registered
Office at Plant Plaza Road, Dhurwa, Ranchi v. Union of India, through Deputy Chief Labour
Commissioner (Central), Dhanbad and others.......................................................................
...............................................................(Jhar.) (Dr. S.N. Pathak, J.) 2021 (1) LLN 217
Jagran Prakashan Limited and others v. Presiding Officer, Labour Court and others ...............
................................................... (All.) (Jahangir Jamshed Munir, J.) 2021 (1) LLN 62
John D’Souza v. Karnataka State Road Transport Corporation.................................................
............................................................................. (SC) (Surya Kant, J.) 2021 (1) LLN 1
Kiran, P. v. Commissioner, Bengaluru Development Authority ...............................................
.................(DB) (Kar.) (Neranahalli Srinivasan Sanjay Gowda, J.) 2021 (1) LLN 286
Managing Director, MIMS Hospital (Now Aster Mims Hospital) v. K. Premaraj ..........................
................................................ (Ker.) (Raja Vijayaraghavan, V., J.) 2021 (1) LLN 379
Mangalam Publications (India) Pvt. Ltd. v. Saju George ..........................................................
.......................................................(DB) (Ker.) (A.M. Shaffique, J.) 2021 (1) LLN 373
Manisha Priyadarshini v. Aurobindo College - Evening & others.............................................
.............................................................(DB) (Del.) (Asha Menon, J.) 2021 (1) LLN 134
Marikukkala Ramulti v. Chairman & Managing Director, Singareni Collieries Company Ltd.
and others ......................................................... (Telan.) (P. Naveen Rao, J.) 2021 (1) LLN 436
Munni Bai Sen v. M.P. State Agriculture Marketing Board, Bhopal.........................................
(DB) (MP) (Ravi Shankar Jha, A.C.J. & Vijay Kumar Shukla, J.) 2021 (1) LLN 401
Orissa Mining Corporation Ltd. and others v. Union of India, Ministry of Labour and others .
................................................ (DB) (Ori.) (Mohammad Rafiq, C.J.) 2021 (1) LLN 412
Private Hospital & Nursing Homes Association, Phana, and others v. Secretary, Labour
Department, Government of Karnataka and others ...............................................................
......................................(DB) (Kar.) (Abhay Shreeniwas Oka, C.J.) 2021 (1) LLN 225
Radhakrishna Menon, B. v. State of Kerala ..............................................................................
.................................................... (DB) (Ker.) (S. Manikumar, C.J.) 2021 (1) LLN 295
Rajeev Agarwal v. Union of India and others...... (Del.) (Suresh Kait, J.) 2021 (1) LLN 152
Rameshbhai Laxmanbhai Khristi v. State of Gujarat ................................................................
................................................................ (Guj.) (Biren Vaishnav, J.) 2021 (1) LLN 205
State of Karnataka and others v. N. Gangaraj ....(SC) (Hemant Gupta, J.) 2021 (1) LLN 18
State of M.P. and others v. Ramadhar Pal .................................................................................
...........(DB) (MP) (Sheel Nagu & Rajeev Kumar Shrivastava, JJ.) 2021 (1) LLN 403
State of Odisha and others v. Ganesh Chandra Sahoo .............................................................
.....................................................................(SC) (Hrishikesh Roy, J.) 2021 (1) LLN 25
Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields Ltd. v. Narayan Karu
Dahekar ........................................................... (Bom.) (R.V. Ghuge, J.) 2021 (1) LLN 96
Subhash Bajrangsingh Chaudhary v. J.K. Laxmi Cement Ltd..................................................
.................................................................. (Guj.) (V.M. Pancholi, J.) 2021 (1) LLN 178
Sudhir Chandra Sah v. State of Bihar and others.......................................................................
..................................................... (Pat.) (Anjani Kumar Sharan, J.) 2021 (1) LLN 427
U.P. Financial Corporation v. Appellate Authority under Payment of Gratuity Act and others
................................................... (All.) (Jahangir Jamshed Munir, J.) 2021 (1) LLN 52
Union Bank of India v. Mujahid Qasim and others ...................................................................
............................................................ (Del.) (Prathiba M. Singh, J.) 2021 (1) LLN 114
Uttam Singh v. State of Uttarakhand and others........................................................................
................................................. (DB) (Utt.) (Alok Kumar Verma, J.) 2021 (1) LLN 473
 SUBJECT INDEX
ALLAHABAD HIGH COURT RULES, 1952
— Chapter VIII, Rule 5 — Minimum Wages Act, 1948 (11 of 1948), Sections 2(i)
& 20 — ‘Employee’ — Definition of — Daily Wagers — Claims under Act —
Whether Authority/Labour Commissioner exercising jurisdiction under Act, acts as
a ‘Tribunal’ — Maintainability of Special Appeal — Case of Appellant that he was
employed as Daily Wager in PWD for Salary at `240 per days from 7.11.1984 to
31.7.1990 — His Wages and Dearness Allowance not been paid — Filed Writ
Petition No.991 of 2011 — Court directed to file Claim Petition under Section 20 of
Minimum Wages Act — Authority under Act dismissed Claim Petition on ground
that there is no provision under Act for D.A. and other Daily Wages — Aggrieved,
Appellant filed Writ Petition — Single Judge dismissed it observing that he was not
Employee within meaning of Section 2(i) of Act as he was not employed against
existing vacancy and also that he is not covered under Notification, dated
21.10.2005 which was relating to employment in Agriculture sector only and he was
employed with PWD — On challenge, held, ‘Authority’ under Minimum Wages
Act, 1948 particularly Section 20 thereof is constituted by State and invested with
Judicial powers as distinguished from purely Administrative or Executive functions
— Therefore, under Section 20, proceedings before ‘Authority’ have ‘trapping of a
Court’ — Applying test laid down in referred cases, held, ‘Authority/Labour
Commissioner’ acts as ‘Tribunal’ — As a result instant Special Appeal not
maintainable under Rule 5, Chapter VIII of Allahabad High Court Rules, 1952 —
Special Appeal dismissed at admission stage. Uttam Singh v. State of Uttarakhand
(DB) (Utt.) (Alok Kumar Verma, J.) 2021 (1) LLN 473
ARMED SERVICE
— Service Law — Police — Unauthorised absence — Order of Discharge —
Whether warranting interference — Respondent serving as Follower Orderly,
availed leave for nine days, but did not report to duty for 7 years — Stand of
Respondent that he was suffering from Mental illness — In spite of multiple Notices
and Letters, Respondent failed to appear before CMDO for verification of his
Medical status — After conduct of Disciplinary Inquiry, Order of Discharge from
service passed against Respondent in year 1993 — Tribunal refused to interfere with
same — High Court in Writ Petition, modified punishment from Discharge to one of
Compulsory Retirement — Held, No infirmity with Disciplinary proceeding leading
to Discharge Order — Medical Certificate produced by Respondent pertaining to
year 1998, but no mention that he was suffering from Mental illness from year 1991
— Moreover, said Certificate made on basis of referral of local MLA — Doctor
issuing Certificate likely did not treat Respondent — In such circumstances, Order
of Discharge passed against Respondent, upheld — Judgment of High Court
modifying same, erroneous and set aside — Appeal allowed. State of Odisha v.
Ganesh Chandra Sahoo (SC) (Hrishikesh Roy, J.) 2021 (1) LLN 25
BACK WAGES
— In full — Entitlement to — Appellant-Employee, who was reinstated in service,
aggrieved that she was not awarded full Back Wages — Held, no proof or pleading
submitted by Appellant that she was not gainfully employed elsewhere during
relevant period — In absence of same, Order of Single Judge rejecting claim of
Appellant for Back Wages in full, not interfered with — Writ Appeal dismissed —
Service Law. Munni Bai Sen v. M.P. State Agriculture Marketing Board, Bhopal (DB)
(MP) (Ravi Shankar Jha, A.C.J. & Vijay Kumar Shukla, J.) 2021 (1) LLN 401
BANKING REGULATION ACT, 1949 (10 OF 1949)
— Section 35-B(1)(b) — Constitution of India, Articles 12 & 226 — Whether
Private Banks, a ‘State’ within meaning of Article 12 — Scope of Article 226 —
Maintainability of Writ Petition — Previous approval of RBI in case of
Appointment, Reappointment, Termination — Petitioner joined as Management
Trainee with Respondent-Bank — Reached up to level of MD & CEO — On basis
of Complaint, Inquiry initiated against Petitioner and directed her in June 2018 to go
on leave till completion of Inquiry — Petitioner sought early Retirement which was
accepted vide Letter, dated 4th October 2018 subject to certain conditions —
Petitioner terminated from service and Retirement benefits were revoked vide
Communication, dated 1st February 2019 — Petitioner challenges action praying
that acceptance of early Retirement be declared valid, set aside Termination Order
and refrain Respondent from recovering benefits granted to her — Held, Scope of
Article 226 is wide and writs & Orders of diverse nature can be issued as power of
Courts not bound by technicalities — A Private Company normally not amenable to
Writ jurisdiction under Article 226 — Even if a body performing Public duty and
amenable to Writ jurisdiction, all its decisions not subject to Judicial Review —
Before issuing Writ, particularly Writ of Mandamus, Court has to satisfy that action
of Authority, is in domain of Public law as distinguished from Private law —
Relationship between Petitioner and Respondent governed by Contract of terms of
Resolution and Orders passed by Respondent — When employment in Private entity
regulated by Contracts, Courts would not exercise Writ jurisdiction — Banking
Regulation Act empowers RBI to issue directions to Banks, regulate shareholding
and operations of Banks in interest of Banking policy — Banking Companies like
Respondent-Bank have freedom to conduct their affairs — Section 35-B(1)(b)
enacted with object to ensure that action of a Bank does not have adverse impact on
banking — Proposal for termination of Employee is examined by RBI from
perspective of its impact on general banking and it has no lis between Employer and
Employee — Section 35-B(1)(b) not enacted to regulate Service conditions
between Employer and Employee — Petitioner-Bank, not an instrumentality of
State and receives no Pubic funding — Dispute raised by Petitioner arose from
Contractual relationship — Section 35-B(1)(b) does not regulate Service
conditions and approval for Termination under it does not adjudicate rights of
Petitioner as Employee — For Contractual remedies, Petitioner at liberty to
approach appropriate forum and not Writ jurisdiction — Writ Petition dismissed
as not maintainable. Chanda Deepak Kochhar v. ICICI Bank Ltd. (DB) (Bom.) (N.M.
Jamdar, J.) 2021 (1) LLN 105
BIHAR PENSION RULES, 1950
— Rule 139 — Deduction from Pension — Recovery of alleged loss from gratuity
and amount of leave encashment without holding enquiry — Whether sustainable —
Petitioner employed as Overseer and was transferred from time to time —
Superannuated on 30.9.1999 while working as Junior Engineer at PWD, Road
Division, Saharsa — While in service, it was alleged against him in 1989 about
shortage of bitumen — No FIR filed but an entry made in his service record after six
years in 1995 of alleged shortage — Respondent 2 issued Order, dated 21.5.2012 to
Petitioner informing that he has been found guilty of shortage of 58.81 MT Bitumen
valued at `2,39,944 and ordered 5% deduction of Pension as per provision 139 of
Pension Rules — No Departmental proceedings initiated except an entry in service
records — Petitioner represented to Respondent to review their decision but in vain —
On challenge, held, It is undisputed that no Departmental Enquiry initiated or FIR filed
by department — Recovery made twice, one from Pension and another from gratuity
and leave encashment — It is well settled by catena of Judgments by Supreme Court
that right to receive Pension and gratuity could not be taken away without authority of
law as these rights are covered under right to property under Article 311(1) of
Constitution of India — Right to receive Pension held to be right to property protected
under Article 300-A even after repeal of Article 31(1) as held in State of West Bengal
v. Haresh C Banerjee, 2006 (7) SCC 651 — Counsel for Respondents not countenance
passing of Second Order and there being no authority to initiate Second Enquiry after
earlier punishment to deduct 5% of pension lifelong accepted by Petitioner — Act of
alleged misconduct not survived — Impugned Order held to be wholly without
jurisdiction and illegal and quashed — Writ Petition allowed — Respondents directed
to release amount of gratuity and leave encashment within two months failing which
Petitioner entitled to 9% Interest. Sudhir Chandra Sah v. State of Bihar (Pat.) (Anjani
Kumar Sharan, J.) 2021 (1) LLN 427
CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974)
— Sections 195(1)(b) & 340 — Industrial Disputes Act, 1947 (14 of 1947), Section
33-C(2) — Representative Application — Tampering of Court Records — Petitioner,
General Secretary of Labour Union, filed Application under Section 33-C(2) —
Application, though initially signed only by Petitioner, was subsequently signed by
three Workmen — After due inquiry, Registrar was directed to file Complaint against
Petitioner for tampering Court records — Challenge thereto — Held, said Order
already implemented and Criminal Compliant filed — No error in impugned Order —
Petitioner at liberty to seek quashing of Complaint before appropriate Court — Writ
Petition dismissed. Subhash Bajrangsingh Chaudhary v. J.K. Laxmi Cement Ltd. (Guj.)
(V.M. Pancholi, J.) 2021 (1) LLN 178
COMPANIES ACT, 2013 (18 OF 2013)
— Section 178 — Delegation of Authority [DoA] Manual, Clause 4.14 — HR
Policy, Clause 4.4.3.6 — Standards of Conducts and Performance of HR Policy
(PLL), Section 4 — Exercise of Powers pertaining to HR — Competent Authority
for Disciplinary Action and awarding punishment — Following of process by HR
Department — Procedure for imposing penalty of Removal — Petitioner, an Officer
of Senior Level in Petronet LNG Ltd. is a whistle blower against corruption and
made representations to Chairman of Company as well as CVC and Director-CBI —
Aggrieved by this, Respondent-6 started victimization of Petitioner and issued
Charge-sheet to him without any Preliminary Enquiry — Reply submitted by
Petitioner not found to be satisfactory and he was asked to defend himself before
Inquiry Committee — Petitioner wrote to CMD/Respondent-6 that Committee has
no legal force as same not constituted with approval of Chairman/Board of Directors
— Request of Petitioner to allow him as an Assisting Officer, was declined and
Inquiry proceeded ex parte — Inquiry Committee held charges as proved against
Petitioner and asked Petitioner to submit his Reply within a week failing which
Order will be passed — Petitioner did not file his Representation on being granted
further time, instead filed present Petition challenging Inquiry Report and Charge-
sheet — Held, Charge-sheet sent through Reporting Officer carried approval of MD
& CEO — Initiation of Disciplinary proceedings according to applicable Rules of
Company — As per Clause 4.14 of DoA Manual powers pertaining to HR vests with
MD & CEO — As per Clause 4.4.3.6 of HR Policy, Competent Authority for
Disciplinary action and punishment is MD & CEO for Officers and Directors
concerned — Section 4 of HR Policy (PLL) clearly lays down process to be
followed by HR Department in consultation with MD & CEO for any action
including Disciplinary action — Thus, MD & CEO is Competent Authority and has
full powers for initiation of Disciplinary action against any Officer of PLL — If
penalty of Removal is imposed, procedure prescribed under Section 178 of
Companies Act required to be followed — However, for minor and other penalties,
MD & CEO would be Competent Authority — Court finds from record that MD &
CEO approved issuance of Charge-sheet — Hence, contention of Petitioner and
ration of Judgments relied upon are of no assistance to Petitioner — In view of
allegations of corruption, Chief Vigilance Commissioner directed to inquire into
allegations made by Petitioner against Respondent 6 and take action as per law —
Petitioner given liberty to file response to findings of Inquiring Authority within
three weeks — On receipt of response, Respondent to consider same and pass Order
as per law — Writ Petition disposed of accordingly. Rajeev Agarwal v. Union of India
(Del.) (Suresh Kait, J.) 2021 (1) LLN 152
CONSTITUTION OF INDIA
— Articles 12 & 226 — Banking Regulation Act, 1949 (10 of 1949), Section 35-
B(1)(b) — Whether Private Banks, a ‘State’ within meaning of Article 12 — Scope
of Article 226 — Maintainability of Writ Petition — Previous approval of RBI in
case of Appointment, Reappointment, Termination — Petitioner joined as
Management Trainee with Respondent-Bank — Reached up to level of MD & CEO
— On basis of Complaint, Inquiry initiated against Petitioner and directed her in
June 2018 to go on leave till completion of Inquiry — Petitioner sought early
Retirement which was accepted vide Letter, dated 4th October 2018 subject to
certain conditions — Petitioner terminated from service and Retirement benefits
were revoked vide Communication, dated 1st February 2019 — Petitioner
challenges action praying that acceptance of early Retirement be declared valid, set
aside Termination Order and refrain Respondent from recovering benefits granted to
her — Held, Scope of Article 226 is wide and writs & Orders of diverse nature can
be issued as power of Courts not bound by technicalities — A Private Company
normally not amenable to Writ jurisdiction under Article 226 — Even if a body
performing Public duty and amenable to Writ jurisdiction, all its decisions not
subject to Judicial Review — Before issuing Writ, particularly Writ of Mandamus,
Court has to satisfy that action of Authority, is in domain of Public law as
distinguished from Private law — Relationship between Petitioner and Respondent
governed by Contract of terms of Resolution and Orders passed by Respondent —
When employment in Private entity regulated by Contracts, Courts would not
exercise Writ jurisdiction — Banking Regulation Act empowers RBI to issue
directions to Banks, regulate shareholding and operations of Banks in interest of
Banking policy — Banking Companies like Respondent-Bank have freedom to
conduct their affairs — Section 35-B(1)(b) enacted with object to ensure that action
of a Bank does not have adverse impact on banking — Proposal for termination of
Employee is examined by RBI from perspective of its impact on general banking
and it has no lis between Employer and Employee — Section 35-B(1)(b) not
enacted to regulate Service conditions between Employer and Employee —
Petitioner-Bank, not an instrumentality of State and receives no Pubic funding —
Dispute raised by Petitioner arose from Contractual relationship — Section 35-
B(1)(b) does not regulate Service conditions and approval for Termination under it
does not adjudicate rights of Petitioner as Employee — For Contractual remedies,
Petitioner at liberty to approach appropriate forum and not Writ jurisdiction —
Writ Petition dismissed as not maintainable. Chanda Deepak Kochhar v. ICICI Bank
Ltd. (DB) (Bom.) (N.M. Jamdar, J.) 2021 (1) LLN 105
— Articles 226 & 227 — Disciplinary Proceedings — Scope of Judicial Review —
Respondent was working as Police Inspector at Mysore — On Complaint,
Lokayukta Police laid trap and filed Criminal Complaint — Special Judge acquitted
Respondent after trial — Departmental Enquiry initiated against Respondent and he
was dismissed — Departmental Appeal filed by Respondent dismissed — OA filed
in Administrative Tribunal which set aside Order of dismissal — On challenge,
High Court found discrepancies in evidence of Witnesses — On challenge, held,
interference with Order of Punishment by Tribunal as affirmed by High Court
suffers from patent error — Powers of Judicial Review confined to decision making
process — In Union of India v. P. Gunasekaran, 2015 (2) SCC 610, Court held that
while appreciating evidence, High Court cannot act as Appellate Authority in
Disciplinary proceedings and laid down parameters as to when High Court shall not
interfere in Disciplinary proceedings — In instant case, it is not case of no evidence or
that findings are perverse — Findings interfered with on ground of discrepancies in
evidence of Department — Enquiry Officer appreciated evidence and held Respondent
guilty of misconduct — Disciplinary Authority agreed with findings of Enquiry
Officer and passed Order of Punishment — Once evidence accepted by Departmental
Authority, Tribunal or High Court could not interfere with findings of facts by
reappreciating evidence as if Courts are Courts of Appeal — Orders of Tribunal and
High Court suffers from patent illegality and unsustainable — Appeal allowed —
Orders of Tribunal and High Court set aside — Order of Punishment imposed restored
— Prevention of Corruption Act, 1988 (49 of 1988), Sections 7, 13(1)(d) & 13(2). State
of Karnataka v. N. Gangaraj (SC) (Hemant Gupta, J.) 2021 (1) LLN 18
CONTRACT LABOUR (REGULATION AND ABOLITION) ACT,
1970 (37 OF 1970)
— Payment of Gratuity Act 1972 (39 of 1972), Sections 1(3) & 2(e) — Factories
Act, 1948 (63 of 1948), Section 2(1) — Payment of Gratuity Rules, 1972, Rule
10(1) — Application of Act — ‘Employee’ — Definition — ‘Worker’ — Definition
— Application to Controlling Authority for direction — Entitlement of Contract
Workers to Gratuity — ‘Sham Contracts’ —Petitioners engaged Contractors through
Manpower Samities — Respondent-3 was Workman of Samiti run by Respondent-4
— Respondent-3 superannuated on 31.3.2012 — Approached Petitioner and
Respondent-4 for payment of Gratuity which was not paid — Filed application
before Controlling Authority which was dismissed — On Appeal, Appellate
Authority ordered payment of Gratuity to Respondent 3 with 10% Interest from
1.4.2012 — On challenge, held, Section 1(3) of Act not certainly excludes
Contractor’s establishment from purview of Gratuity Act and Contract Labour covered
under Act — Under Gratuity Act, Employee and under Factories Act, Workers include
a Contract Workers — Contention that Respondent was not direct Employee of
Petitioner-Company and they are not liable to pay Gratuity as there was no Employer-
Employee relationship, not tenable — Further, PF contribution of Workmen being
deposited and Register of Records maintained and superannuated at 60 years of age
though Contract Labour has no Retirement age as per Contract Labour (R&A) Act,
1970 — Facts sufficient to hold that Principal Employer is Petitioner and Contract
between Society and Principal Employer is just a paper arrangement — No illegality
or infirmity in impugned Order — Writ Petition dismissed being meritless —
Petitioner-Management directed to pay Gratuity as determined by Appellate Authority
within eight weeks — Pending I.A. disposed of accordingly. Heavy Engineering
Corporation Ltd. v. Union of India, through Deputy Chief Labour Commissioner (Central),
Dhanbad (Jhar.) (Dr. S.N. Pathak, J.) 2021 (1) LLN 217
— Sections 2(a), 2(e), 3 & 10(1) — Mines Act, 1952 (35 of 1952), Section 2(1)(j)
— ‘Appropriate Government’ — ‘Establishment’ — Definitions — Constitution of
Central Advisory Contract Labour Board [CACLB] — Prohibition of employment
of Contract Labour — ‘Mines’ — Meaning — Challenge under OJC No.5277/1994
is by Petitioner to validity of Notification, dated 23.3.1993 issued by UoI under
Section 10(1) of CLRA prohibiting employment of Contract Labour in specified
works in Manganese Mines in Country — Writ Appeal has been filed by UoI
impugning Judgement, dated 3.4.2015 by Single Judge allowing Petition of Aryan
Mining holding that Notification, dated 23.3.1993 is not applicable to Petitioner’s
establishment-Manganese Mines — W.As. 355 & 356 of 2015 also filed by UoI
impugning Judgement, dated 3.4.2015 of Single Judge, allowing Writ Petitions of
Patnaik Minerals and B.D Patnaik Ltd. holding Notification, dated 17.3.1993 is not
applicable to Petitioner’s establishment being not passed by ‘Appropriate
Government’ i.e. State Government — Held, ‘Appropriate Government’ as defined
in CLRA 1970 r/w Section 2(a)(i) of ID Act 1947 in respect of Mines has to be
Central Government and not State Government as held in matter of Bishra Stone &
Lime Co. Ltd. v. Union of India, 2007 (103) CLT 461 —Since Single Judge in
impugned Writ Appeals neither noted complete definition of ‘Appropriate
Government’ in Section 2(a)(i) as to what includes a “mine” making Central
Government as Appropriate Government, nor noticed referred decision of Division
Bench, upholding validity of very same Notification, dated 17.3.1993, impugned
decisions for these reasons shall be per incuriam — Court’s view fortified from
Judgement of Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra,
2014 (16) SCC 623 — In view of matter, OJC No.5277/1994 dismissed — Writ
Appeal Nos.355,356 & 357 of 2015 succeed and allowed — Consequently OJC
9630/1993, OJC 9632/1993 and OJC 2172/1994 stand dismissed. Orissa Mining
Corporation Ltd. v. Union of India, Ministry of Labour (DB) (Ori.) (Mohammad Rafiq,
C.J.) 2021 (1) LLN 412
DELEGATION OF AUTHORITY [DOA] MANUAL
— Clause 4.14 — HR Policy, Clause 4.4.3.6 — Standards of Conducts and
Performance of HR Policy (PLL), Section 4 — Companies Act, 2013 (18 of 2013),
Section 178 — Exercise of Powers pertaining to HR — Competent Authority for
Disciplinary Action and awarding punishment — Following of process by HR
Department — Procedure for imposing penalty of Removal — Petitioner, an Officer
of Senior Level in Petronet LNG Ltd. is a whistle blower against corruption and
made representations to Chairman of Company as well as CVC and Director-CBI —
Aggrieved by this, Respondent-6 started victimization of Petitioner and issued
Charge-sheet to him without any Preliminary Enquiry — Reply submitted by
Petitioner not found to be satisfactory and he was asked to defend himself before
Inquiry Committee — Petitioner wrote to CMD/Respondent-6 that Committee has
no legal force as same not constituted with approval of Chairman/Board of Directors
— Request of Petitioner to allow him as an Assisting Officer, was declined and
Inquiry proceeded ex parte — Inquiry Committee held charges as proved against
Petitioner and asked Petitioner to submit his Reply within a week failing which
Order will be passed — Petitioner did not file his Representation on being granted
further time, instead filed present Petition challenging Inquiry Report and Charge-
sheet — Held, Charge-sheet sent through Reporting Officer carried approval of MD
& CEO — Initiation of Disciplinary proceedings according to applicable Rules of
Company — As per Clause 4.14 of DoA Manual powers pertaining to HR vests with
MD & CEO — As per Clause 4.4.3.6 of HR Policy, Competent Authority for
Disciplinary action and punishment is MD & CEO for Officers and Directors
concerned — Section 4 of HR Policy (PLL) clearly lays down process to be
followed by HR Department in consultation with MD & CEO for any action
including Disciplinary action — Thus, MD & CEO is Competent Authority and has
full powers for initiation of Disciplinary action against any Officer of PLL — If
penalty of Removal is imposed, procedure prescribed under Section 178 of
Companies Act required to be followed — However, for minor and other penalties,
MD & CEO would be Competent Authority — Court finds from record that MD &
CEO approved issuance of Charge-sheet — Hence, contention of Petitioner and
ration of Judgments relied upon are of no assistance to Petitioner — In view of
allegations of corruption, Chief Vigilance Commissioner directed to inquire into
allegations made by Petitioner against Respondent 6 and take action as per law —
Petitioner given liberty to file response to findings of Inquiring Authority within
three weeks — On receipt of response, Respondent to consider same and pass Order
as per law — Writ Petition disposed of accordingly. Rajeev Agarwal v. Union of India
(Del.) (Suresh Kait, J.) 2021 (1) LLN 152
DISCIPLINARY PROCEEDINGS
— Scope of Judicial Review — Respondent was working as Police Inspector at
Mysore — On Complaint, Lokayukta Police laid trap and filed Criminal Complaint
— Special Judge acquitted Respondent after trial — Departmental Enquiry initiated
against Respondent and he was dismissed — Departmental Appeal filed by
Respondent dismissed — OA filed in Administrative Tribunal which set aside Order
of dismissal — On challenge, High Court found discrepancies in evidence of
Witnesses — On challenge, held, interference with Order of Punishment by Tribunal
as affirmed by High Court suffers from patent error — Powers of Judicial Review
confined to decision making process — In Union of India v. P. Gunasekaran, 2015
(2) SCC 610, Court held that while appreciating evidence, High Court cannot act as
Appellate Authority in Disciplinary proceedings and laid down parameters as to
when High Court shall not interfere in Disciplinary proceedings — In instant case, it
is not case of no evidence or that findings are perverse — Findings interfered with
on ground of discrepancies in evidence of Department — Enquiry Officer
appreciated evidence and held Respondent guilty of misconduct — Disciplinary
Authority agreed with findings of Enquiry Officer and passed Order of Punishment
— Once evidence accepted by Departmental Authority, Tribunal or High Court
could not interfere with findings of facts by reappreciating evidence as if Courts are
Courts of Appeal — Orders of Tribunal and High Court suffers from patent
illegality and unsustainable — Appeal allowed — Orders of Tribunal and High
Court set aside — Order of Punishment imposed restored — Prevention of
Corruption Act, 1988 (49 of 1988), Sections 7, 13(1)(d) & 13(2) — Constitution of
India, Articles 226 & 227. State of Karnataka v. N. Gangaraj (SC) (Hemant Gupta, J.)
2021 (1) LLN 18
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS
PROVISIONS ACT, 1952 (19 OF 1952)
— Sections 6 & 7-A — Allowances — Whether included in Basic Wages —
Respondent-Establishment covered under EPF Act — Respondent only
contributing fraction of actual Basic Wages paid to its Employees and major
chunk was treated as contribution payable towards Allowances — Held, Basic
Wages comprises of all emoluments earned by Employee while on duty or on paid
leave — In instant case, Uniform Allowance, Washing Allowance, Food
Allowance and Travelling Allowance paid by Respondent to all its Employees
uniformly — Said Allowances not paid as incentive — Said Allowances, held,
form part of Basic Wages and liable to be included for assessment and deduction
for Provident Fund — Order of Appellate Tribunal to contrary, erroneous and set
aside — Writ Petition allowed. Employees’ Provident Fund Organization v. M.S.
Raven Beck Solutions (India) Ltd. (Ker.) (A.M. Badar, J.) 2021 (1) LLN 390
FACTORIES ACT, 1948 (63 OF 1948)
— Section 2(1) — Payment of Gratuity Act 1972 (39 of 1972), Sections 1(3) & 2(e)
— Payment of Gratuity Rules, 1972, Rule 10(1) — Contract Labour (Regulation and
Abolition) Act, 1970 (37 of 1970) — Application of Act — ‘Employee’ —
Definition — ‘Worker’ — Definition — Application to Controlling Authority for
direction — Entitlement of Contract Workers to Gratuity — ‘Sham Contracts’ —
Petitioners engaged Contractors through Manpower Samities — Respondent-3 was
Workman of Samiti run by Respondent-4 — Respondent-3 superannuated on
31.3.2012 — Approached Petitioner and Respondent-4 for payment of Gratuity
which was not paid — Filed application before Controlling Authority which was
dismissed — On Appeal, Appellate Authority ordered payment of Gratuity to
Respondent 3 with 10% Interest from 1.4.2012 — On challenge, held, Section 1(3)
of Act not certainly excludes Contractor’s establishment from purview of Gratuity
Act and Contract Labour covered under Act — Under Gratuity Act, Employee and
under Factories Act, Workers include a Contract Workers — Contention that
Respondent was not direct Employee of Petitioner-Company and they are not liable
to pay Gratuity as there was no Employer-Employee relationship, not tenable —
Further, PF contribution of Workmen being deposited and Register of Records
maintained and superannuated at 60 years of age though Contract Labour has no
Retirement age as per Contract Labour (R&A) Act, 1970 — Facts sufficient to hold
that Principal Employer is Petitioner and Contract between Society and Principal
Employer is just a paper arrangement — No illegality or infirmity in impugned
Order — Writ Petition dismissed being meritless — Petitioner-Management directed
to pay Gratuity as determined by Appellate Authority within eight weeks — Pending
I.A. disposed of accordingly. Heavy Engineering Corporation Ltd. v. Union of India,
through Deputy Chief Labour Commissioner (Central), Dhanbad (Jhar.) (Dr. S.N.
Pathak, J.) 2021 (1) LLN 217
GENERAL CLAUSES ACT, 1897 (10 OF 1897)
— Section 21 — Power to issue, to include power to add, to amend, vary or
rescind Notifications, Orders, Rules or Bye-Law — Held, Section 21 will apply
only when in a Statute, there is no specific provision providing for what is
provided in Section 21 — Exception to exercise power under Section 21 of
rescinding Notifications or Orders shall be in cases, where Order passed under a
particular, Statute already given effect and Third party interests created —
Specific powers conferred upon to review or revise rates of Wages — For such
revision or review recourse to Section 21 cannot be taken — Procedure prescribed
under Section 5 of 1948 Act has to be followed. Private Hospital & Nursing Homes
Association, Phana v. Secretary, Labour Department, Government of Karnataka (DB)
(Kar.) (Abhay Shreeniwas Oka, C.J.) 2021 (1) LLN 225
HR POLICY
— Clause 4.4.3.6 — Delegation of Authority [DoA] Manual, Clause 4.14 —
Standards of Conducts and Performance of HR Policy (PLL), Section 4 — Companies
Act, 2013 (18 of 2013), Section 178 — Exercise of Powers pertaining to HR —
Competent Authority for Disciplinary Action and awarding punishment — Following
of process by HR Department — Procedure for imposing penalty of Removal —
Petitioner, an Officer of Senior Level in Petronet LNG Ltd. is a whistle blower against
corruption and made representations to Chairman of Company as well as CVC and
Director-CBI — Aggrieved by this, Respondent-6 started victimization of Petitioner
and issued Charge-sheet to him without any Preliminary Enquiry — Reply submitted
by Petitioner not found to be satisfactory and he was asked to defend himself before
Inquiry Committee — Petitioner wrote to CMD/Respondent-6 that Committee has no
legal force as same not constituted with approval of Chairman/Board of Directors —
Request of Petitioner to allow him as an Assisting Officer, was declined and Inquiry
proceeded ex parte — Inquiry Committee held charges as proved against Petitioner
and asked Petitioner to submit his Reply within a week failing which Order will be
passed — Petitioner did not file his Representation on being granted further time,
instead filed present Petition challenging Inquiry Report and Charge-sheet — Held,
Charge-sheet sent through Reporting Officer carried approval of MD & CEO —
Initiation of Disciplinary proceedings according to applicable Rules of Company —
As per Clause 4.14 of DoA Manual powers pertaining to HR vests with MD & CEO
— As per Clause 4.4.3.6 of HR Policy, Competent Authority for Disciplinary action
and punishment is MD & CEO for Officers and Directors concerned — Section 4 of
HR Policy (PLL) clearly lays down process to be followed by HR Department in
consultation with MD & CEO for any action including Disciplinary action — Thus,
MD & CEO is Competent Authority and has full powers for initiation of Disciplinary
action against any Officer of PLL — If penalty of Removal is imposed, procedure
prescribed under Section 178 of Companies Act required to be followed — However,
for minor and other penalties, MD & CEO would be Competent Authority — Court
finds from record that MD & CEO approved issuance of Charge-sheet — Hence,
contention of Petitioner and ration of Judgments relied upon are of no assistance to
Petitioner — In view of allegations of corruption, Chief Vigilance Commissioner
directed to inquire into allegations made by Petitioner against Respondent 6 and take
action as per law — Petitioner given liberty to file response to findings of Inquiring
Authority within three weeks — On receipt of response, Respondent to consider same
and pass Order as per law — Writ Petition disposed of accordingly. Rajeev Agarwal v.
Union of India (Del.) (Suresh Kait, J.) 2021 (1) LLN 152
 INDUSTRIAL DISPUTES ACT, 1947 (14 OF 1947)
— Sections 2(oo), 2(a)(ii), 25-N & 25-O —Uttar Pradesh Industrial Disputes Act,
1947 (28 of 1947), Section 4-K — Reference — Scope of — Working Journalists
and other Newspaper Employees (Conditions of Service) and Miscellaneous
Provisions Act, 1955 (45 of 1955), Sections 2(dd), 2(f) & 3 — Appropriate
Government to refer Industrial Dispute — Retrenchment — Conditions precedent to
retrenchment — Procedure for closing down undertaking — Sham Closure —‘Non-
journalist Newspaper Employee’ — ‘Working Journalist’ — Applicability of
Central ID Act to working journalists — Respondent-2 joined Petitioner as
Apprentice in trade of Plate-making — Terminated due to installation of CTP
Machine — However, Process Department not closed due to installation of CTP —
It is alleged that some new persons also recruited and some others retained —
Respondent’s services terminated without Notice in violation of provisions of Act
—Industrial Dispute raised — Labour Court held Termination illegal and ordered
Reinstatement with continuity of service and 50% Back Wages — On challenge,
held, Section 3 of Working Journalists Act extends application of Central ID Act, to
Working Journalists subject to modifications envisages under sub-section (2) —
Newspaper establishment would clearly fall under sub-clause (ii) of Clause (a) of
Section 2, making Appropriate Government relating to Newspaper establishment a
State Government under Central Act — Reference of dispute under Section 4-K of
State Act, held to be a valid reference — A Plate Maker, a mere technical hand and a
Workman — As per recommendations of Manisana Wage Board, Plate Maker, a
Workman, not a Working Journalist within meaning of Working Journalists Act —
Labour Court reasonably concluded that there was no closure of part of Unit or
Undertaking — Process Department continue to function, may be with changed
technology — Change over to CTP Machines not led to dispensation of services of
Plate Makers like Respondent-Workman — Labour Court rightly concluded that
closure pleaded by Petitioner is a ‘sham’ to get rid of Respondent — Retrenchment
held to be in breach of Section 25-N — Workman, superannuated during pendency
of Writ Petition, cannot be reinstated — His salary revised according to
recommendations of Wage Board — Detailed Calculation furnished by Workman
showing his entitlement worked at 50% of his Wages in terms of Award at
`14,70,137 — Since Workman did not render any service during entire period till
Superannuation, ends of justice would meet by modifying Award to payment of
`6.00 Lakhs towards full and final satisfaction of claim to be paid within two
months failing which Interest at 6% to be paid — Workman entitled to Cost of
`20,000 — Writ Petition partly allowed. Jagran Prakashan Limited v. Presiding
Officer, Labour Court (All.) (Jahangir Jamshed Munir, J.) 2021 (1) LLN 62
— Sections 2(s) & 11-A — ‘Workman’ — Definition — Termination — Fairness of
Enquiry — Powers of Labour Court — Respondent-Workman employed as
Maintenance Supervisor in Engineering Department of Petitioner — Charge-sheeted
alleging misbehaviour, dishonesty and insubordination — Terminated after
Departmental Enquiry — Industrial Dispute raised — Labour Court held that as
Respondent was working in Supervisory capacity, he is not a Workman within
meaning of Section 2(s) of Act — This led to protracted litigation and in terms of
direction of High Court, Labour Court passed Order holding that termination of
Respondent was not justified and directed Management to pay Compensation in lieu
of Reinstatement to extent of 60% Back Wages from date of Termination till date of
Order — Aggrieved, both parties have challenged order — On basis of principles
laid down in referred matters, it is clear that ‘stage’ at which Employer has to ask
opportunity to adduce evidence for justifying its action is stage, when Tribunal
finally comes to conclusion that Domestic Enquiry was invalid — In all cases,
where Enquiry not held or has been found defective, Tribunal can call upon
Management or Employer to justify action taken against Employee or to show by
fresh evidence that Termination or Dismissal Order was proper — If Management
does not avail opportunity, it cannot raise any grouse at subsequent stage — If
evidence adduced by Management, validity of action has to be scrutinized and
adjudicated on basis of fresh evidence, as held in Neeta Kaplish v. P.O, Labour
Court, 1999 (1) SCC 517 — In instant case, Labour Court denied opportunity to
Management to lead evidence to support findings of Enquiry Officer — Said
findings of Labour Court being against law laid down by Apex Court, cannot be
sustained — Matter remitted back to Labour Court for fresh consideration in
accordance with law and principles laid down by Apex Court in referred decisions
— Writ Petitions allowed. Managing Director, MIMS Hospital (Now Aster Mims
Hospital) v. K. Premaraj (Ker.) (Raja Vijayaraghavan, V., J.) 2021 (1) LLN 379
— Sections 10, 11(3), 11-A & 33(2)(b) — Power under Section 10 and Section 33
— Difference between — Scope of Inquiry — An Industrial Dispute stemming out
of an Order of Discharge or Dismissal referable to Labour Court in exercise of
jurisdiction under Section 10(1)(c) — Section 33(2)(b) inserted for a purpose other
than Section 10(1)(c) — Object of Section 33 is to prevent adverse alteration in
conditions of service of Workmen, when Conciliation proceedings are pending —
Employer, however, under Section 33(2) permitted to take punitive action against
Workman for proved misconduct provided same is not connected with pending
dispute — Summary enquiry conducted under Section 33(2)(b) to ensure that
punitive action against Workman is not tainted with mala fides — Said enquiry and
proceedings not akin to adjudication of dispute under Section 10 — Labour Court in
an Inquiry under Section 33(2)(b) can permit parties to lead evidence with respect to
legality and propriety of Domestic Enquiry. John D’Souza v. Karnataka State Road
Transport Corporation (SC) (Surya Kant, J.) 2021 (1) LLN 1
— Sections 10 & 33-C(ii) — Reference — Recovery of money due from
Employer — Gainful employment during Termination period — Burden of proof
— Respondent-Workman raised Industrial Dispute over his Termination —
Labour Court found Termination to be unlawful and directed Reinstatement with
50% Back Wages — Challenge to by Employer to Reinstatement and grant of
50% Wages, whereas Workman sought 100% Back Wages — Upon challenge
before Single Judge, Award of Labour Court upheld and Petition of Workman
impliedly stood dismissed — On challenge by Employer-Appellant, held, Burden of
proof by way of Affidavit of being employed or not rests upon Workman
exclusively — Once Workman states on oath about his non-employment, only then
burden of proof shifts upon Employer — Workman, in Claim Statement, pleaded
about his non-employment but in subsequent oath followed by cross-examination,
Workman did not utter a single word on oath about being not gainfully employed
after Termination — Thus, neither on strength of law laid down in J.K. Synthetics
v. K.P. Agarwal, 2007 (2) SCC 433, nor on anvil of law in Deepali Gundu
Surwase v. Kranti Junior Adhyapak, 2013 (10) SCC 324, Workman could prove
factum of his being not gainfully employed after Termination — Single Judge not
considered issue involved in right perspective and took sympathetic view
considering Act being piece of beneficial legislation — Finding of Labour Court
holding Workman entitled to 50% Back Wages is perverse — Labour Court
overstepped its jurisdiction while granting impugned relief — Findings rendered
by Single Judge need interference of High Court — Impugned Orders set aside —
Appeal allowed. State of M.P. and others v. Ramadhar Pal (DB) (MP) (Sheel Nagu &
Rajeev Kumar Shrivastava, JJ.) 2021 (1) LLN 403
— Sections 17 & 17-A — Publication of Award — Commencement of Award —
Dismissal from Service — Setting aside of dismissal by Labour Court — Death of
Workman — Application for appointment on Compassionate ground — Whether
sustainable — Father of present Appellant working with present Respondent-BDA
— Dismissed from service on 24.2.2003 —Industrial Dispute raised — Labour
Court set aside Dismissal with Back Wages and continuity of service vide Award,
dated 4.9.2013 and directed his Reinstatement within one month from date Award
becomes enforceable — Father of Petitioner died on 18.3.2014 and could not reap
benefits of Award — Respondents accepted Award — Award notified on
20.10.2014, after death of Workman — Appellant submitted Representation on
19.7.2014 seeking appointment on Compassionate ground which was not considered
— Writ Petition filed — Despite Order passed in Writ Petition, Respondent rejected
appointment on Compassionate ground — Appellant, aggrieved by stand taken by
Respondent, filed Writ Petition wherein Single Judge concluded that rejection of
Application for appointment could not be faulted, since family of deceased received
sum of `33.63 Lakhs as Terminal benefits and there was no hardship to family —
On challenge, held, Court on earlier occasion examined issue and recorded
categorical finding that deceased was deemed to be in service on date of his death as
Dismissal was set aside — Every Award of Labour Court become enforceable only
on publication and is required to be published within thirty days from its receipt by
Appropriate Government under Section 17 — Under Section 17-A, Award becomes
enforceable on expiry of thirty days from date of publication subject to Proviso that
Government can decide not to notify Award, if in its opinion it is expedient on
Public grounds affecting National economy or social justice — In Court’s view this
discretion cannot enure to benefit of Employer and Employer is bound by Award
passed by Labour Court — Hence, Employer not entitled to get any benefit from
delay in Notification of Award — Dismissal Order set aside and Workman granted
continuity of service hence, relationship of Employer and Employee stood restored
from date of Dismissal itself — Thus, father of Appellant deemed to have been in
service on date of his death, especially when Award was notified — Entire approach
of Respondent in considering matter held to be arbitrary and irrational — Reasoning
of Single Judge that Appellant’s family received Terminal benefits and they were
not in distress, not acceptable — Had he not been dismissed and continued in
service and died while in service, entitlement of Appellant could not have been
denied under policy of Respondent — Receipt of Terminal benefits cannot be a
yardstick to disentitle dependent member of deceased’s family — Single Judge erred
in dismissing Writ Petition solely on ground that family of deceased received huge
amount of Terminal dues — Appeal allowed — Impugned Order set aside —
Respondent directed to issue Order of Appointment on Compassionate ground to
Appellant, if there is no other legal impediment, within four weeks. Kiran, P. v.
Commissioner, Bengaluru Development Authority (DB) (Kar.) (Neranahalli Srinivasan
Sanjay Gowda, J.) 2021 (1) LLN 286
— Sections 25-F & 33-A — Conditions precedent to Retrenchment — Special
provisions regarding change of conditions of service — Respondent engaged by
Appellant as Temporary Daily Rated Labourer on Ad hoc basis — Appellant passed
instructions to cut short strength of such Workers as economic measure — Such
Daily Wagers filed Second Appeal apprehending their termination — Statement
made by Appellant that if in future services of Respondents required to be
terminated, those would be as per law — Respondent terminated by Appellant along
with 10 others after complying with Section 25-F — Respondent raised Industrial
Dispute under Section 33-A — Labour Court passed Award holding that said action
was during pendency of main reference — On challenge by Appellant, Single Judge
held that no case made out for interference and confirmed Award of Labour Court
— On challenge, held, it is not disputed that activity found to be of perennial nature
— Apart from that, it appears that Reference (Demand) No.1 of 2003 very much
pending consideration — Presiding Officer found that discontinuance of Workman
took place after cognizance of reference which was in violation of Section 33-A —
Award of only 25% amount of Back Wages would be just and reasonable which
warrant no interference in absence of any other distinguishable material — Court
examined Sections 33 & 33-A — It has been held in series of propositions that if
approval is not granted, Order of Dismissal or Discharge not to be operative —
Effect of violation of Statutory consequences must be given full effect as dealt with
by Single Judge —No distinguishable material brought on record, warranting Court
to disturb or substitute findings — Appeal dismissed along with other group
Appeals. Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi (DB)
(Guj.) (A.J. Shastri, J.) 2021 (1) LLN 183
— Section 25-G — Procedure for Retrenchment — Daily Wagers —
Disengagement —Delay in raising dispute — Effect — Compensation in lieu of
Reinstatement — Petitioner engaged as Daily Wager by Electrical Division of
Respondents in September 1999 — Disengaged in March 2001 — O.A. filed before
Administrative Tribunal, which was dismissed for want of jurisdiction —Writ
Petition filed against disposed of with direction to consider case of Petitioner in
terms of Judgment in Partap Chand v. H.P. State Electricity Board, C.W.P. 9467/
2014 — Pursuant to it, Reference made to Labour Court — Labour Court awarded
lump sum Compensation of `2,5000 with Interest at 9% p.a. from date of Award —
Aggrieved, Petitioner filed present Petition — No dispute that Petitioner not
completed 240 days of service in either a Calendar year or for whole period of
service — Labour Court held termination in violation of Section 25-G which not
assailed by Employer and attained finality — High Court of view that Award of
Tribunal in awarding Compensation cannot be faulted with — After dismissal of
O.A. by Administrative Tribunal in 2004, no step taken by Petitioner till 2015 to
raise Industrial Dispute — On filing Writ Petition in 2015, Reference made to
Labour Court — Court cannot shut its eyes to fact that Petitioner remained a mute
spectator between years 2004 and 2015 for which he cannot be rewarded
Reinstatement — Amount of Compensation also reasonable as Petitioner served
only for about 18 months and did not complete 240 days of service in a Calendar
year — Petition being without merit dismissed. Harish Kumar v. State of Himachal
Pradesh (HP) (Ajay Mohan Goel, J.) 2021 (1) LLN 212
— Section 33(2)(b) — Inquiry — Scope of — Labour Court under Section 33(2)(b)
empowered to conduct Inquiry under two phases — Firstly to determine whether
prima facie case made out for discharge/dismissal from service on basis of Domestic
Enquiry and whether said Order suffers from violation of Principle of Natural
Justice or amounts to Unfair Labour Practice — If answer to both questions is in
negative, approval must be given — However, in case if Domestic Enquiry suffers
from any legal ailment, Labour Court empowered to permit parties to adduce
evidence — Evidence permitted to be led in only when Domestic Enquiry suffers
from any defect and not otherwise — Labour Court cannot determine
proportionality of punishment under Section 33(2)(b) — In instant case, reliance
upon evidence produced by parties without holding that Domestic Enquiry was
defective, erroneous — Labour Court directed to re-visit matter in light of principle
enunciated — However, considering ongoing Mediation between parties,
proceedings before Labour Court stayed and parties and Mediator requested to settle
dispute amicably — If Mediation successful, same to be reported to Apex Court,
however, if unsuccessful parties to appear before Labour Court, wherein matter to be
decided on merits. John D’Souza v. Karnataka State Road Transport Corporation (SC)
(Surya Kant, J.) 2021 (1) LLN 1
— Section 33(2)(c) — Approval of Authority in case of Removal — Reinstatement of
Workman — Respondent, working as Conductor with Petitioner-Corporation,
dismissed after Enquiry on charges of Embezzlement — Petitioner moved Application
before Industrial Tribunal seeking approval for removal of Respondent — Pending
approval, Respondent raised Industrial Dispute — Tribunal passed Award directing
Reinstatement of Workman — Petitioner’s Application under Section 33(2)(c) also
dismissed — On challenge, held, records of case reveal that after dismissal of
Application under Section 33(2)(c), Respondent taken back in service and
superannuated in March 2014 — In Order, dated 2nd April, Back Wages not granted
by Tribunal — Said Order not challenged by Workman and attained finality —
Petitioner also accepted Order and reinstated Workman — Hence, challenge to
Reinstatement by Petitioner no longer survive — Regarding Retiral benefits, amount
of `6,88,435 paid to Workman rightly or wrongly — As Workman served Petitioner
w.e.f. 2009-2010 and superannuated in 2014, he would be entitled to retiral and other
benefits including Pension — Release of said amount would be subject to adjustment
of amount already paid to Workman — Petitioner directed to release Retirement
benefits and other dues accordingly — Writ Petitions disposed of accordingly. D.T.C.
v. Kanwar Singh (Del.) (Prathiba M. Singh, J.) 2021 (1) LLN 147
— Section 33-C(2) — Code of Criminal Procedure, 1973 (2 of 1974), Sections
195(1)(b) & 340 — Representative Application — Tampering of Court Records —
Petitioner, General Secretary of Labour Union, filed Application under Section 33-
C(2) — Application, though initially signed only by Petitioner, was subsequently
signed by three Workmen — After due inquiry, Registrar was directed to file
Complaint against Petitioner for tampering Court records — Challenge thereto —
Held, said Order already implemented and Criminal Compliant filed — No error in
impugned Order — Petitioner at liberty to seek quashing of Complaint before
appropriate Court — Writ Petition dismissed. Subhash Bajrangsingh Chaudhary v.
J.K. Laxmi Cement Ltd. (Guj.) (V.M. Pancholi, J.) 2021 (1) LLN 178
KERALA WOMEN’S COMMISSION ACT, 1991 (17 OF 1995)
— Section 11 — Removal of Chairperson — Whether warranted — Writ Petition to
remove R2 from office of Chairperson of Commission — No information against R2
submitted by Petitioner before Commission — No allegation that R2 did not possess
requisite qualifications — Allegations against R2 vague and unsubstantiated —
Reliance placed on Newspaper Reports to contend that R2 had breached oath of office,
unsustainable — Instant case, held, not warranting issuance of Writ of Quo Warranto
— Petition filed without any substance, condemned — Costs of `10,000 imposed on
Petitioner — Writ Petition dismissed. Radhakrishna Menon, B. v. State of Kerala (DB)
(Ker.) (S. Manikumar, C.J.) 2021 (1) LLN 295
LABOUR LAW
— Drivers of Bank’s Executives — Whether Workmen — Employer-Employee
relationship — Respondents-Drivers are serving Executives in erstwhile Corporation
Bank, merged with Union Bank of India — Terminated from service on demanding
regularization — On raising Industrial Dispute, Tribunal holding demand for
regularization as legal, held Termination contrary to law and directed reinstatement
— On challenge, held, several factors to be considered for determining Employer-
Employee relationship including who is Appointing Authority, who is Pay Master,
extent of control and supervision, nature of job, who can take Disciplinary action,
etc. — Facts of instant case similar to that of Bank of Baroda v. Ghemarbhai H
Rabari, 2005 (2) LLN 671 (SC), where Employees produced evidence in form of
Vouchers to show that they worked as Car Drivers for Bank — Supreme Court
upheld Award of CGIT reinstating Workmen — Applying principle and perusing
documents on record, there is no doubt about existence of Employer-Employee
relationship between Bank and Drivers — Records reveal that Drivers also served
Bank in various other roles including picking up parcels, computers, running
errands, claiming reimbursement and sundry jobs — Log Book also maintained to
supervise their day-to-day activities — These facts show that functions performed
by Drivers was integral part of everyday working of Bank — Hence, Court has no
doubt that Drivers were Employees of Bank — Counsel for Bank also submitted that
Bank was willing to regularize them subject to fulfilment of eligibility criteria —
Drivers, who were similarly placed have been regularized — Considering long
duration of service and that they are Employees of Bank, their services deserve to be
regularized in terms of Judgment of Supreme Court in ONGC v. Krishan Gopal,
2020 (2) LLN 17 (SC) — Impugned Order does not warrant any interference —
Reinstatement of Employees upheld — Bank directed to regularize services of 11
Drivers — All Writ Petitions with pending Applications dismissed accordingly.
Union Bank of India v. Mujahid Qasim (Del.) (Prathiba M. Singh, J.) 2021 (1) LLN 114
— Transfer — Justification — Unauthorized absence — Denial of employment —
Abandonment of job — Espousal of cause by Union — Territorial jurisdiction to
decide Reference — Respondent-Workman employed as Assistant Photographer with
Appellant — Transferred to Mumbai, which was challenged by raising Industrial
Dispute — Transfer found unjustified and he was directed to be reinstated with 50%
Back Wages and again transferred to Delhi — Disciplinary action initiated for
unauthorized absence but action not continued — Alleging denial of employment,
Industrial Dispute raised — Workman represented by Union — Industrial Tribunal
concluded that there was denial of employment which Order impugned before Single
Judge, who confirmed Order of Industrial Tribunal — On challenge, held, Workman
was member of Union in question, who espoused cause of Workman from initial stage
— Once Reference made at instance of Union, it is not open to Management to
contend at this stage that cause of Workman not espoused by Union — Issue of
territorial jurisdiction cannot be raised at this late stage — Complaint made before
Competent Authority where Head Office of Appellant functioning pursuant to which
Conciliation proceedings took place — Complaint of denial of employment, though he
was transferred to Delhi, can be raised where Management has Head Office and need
not be at place where Workman actually worked — Cause of action would arise also
where Head Office located — It is settled law that Writ Court should not interfere in
matters decided by Tribunal on factual consideration of material placed on record —
Tribunal, having considered material arrived at conclusion about denial of
employment — Single Judge also not interfered with said findings — No perversity
found in impugned Orders — Tribunal granted only 50% Back Wages — A person,
who denied employment would be entitled to continuity in service and Back Wages —
No ground to interfere with such findings — Appeal dismissed. Mangalam Publications
(India) Pvt. Ltd. v. Saju George (DB) (Ker.) (A.M. Shaffique, J.) 2021 (1) LLN 373
MATERNITY BENEFIT ACT, 1961 (53 OF 1961)
— Right to Maternity Leave — Notification, dated 11.10.2013 — Benefit of
Maternity Leaves only to Permanent Teachers — Resolution No.120(8), Appendix-V
— AC Resolution No.34, dated 23.4.2005 — ‘Admissible leaves’ — Exclusion of
Maternity Leaves to Ad hoc Teachers — Whether justified — Appellant working as
Ad hoc Assistant Professor since 7.8.2019 in different Colleges affiliated with 3rd
Respondent-Delhi University — University used to renew Contract every 120 days
by notional artificial breaks — Appellant requested for Maternity Leave vide Letter,
dated 4.1.2019 and 16.1.2019 — Representation of Petitioner rejected impliedly by
crediting Salary of only 18 days — When she reported for duties after birth of her
child, she was informed that she was no longer on rolls of College — Writ Petition
No.3160/2019 filed praying for Maternity Leave and quashing of Notification dated
11.10.2013 which was dismissed in limine — On challenge, held, Leaves other than
Maternity Leave, such as Half Pay Leave on Medical grounds, Casual and Earned
Leaves could have been granted — Contention of Respondents that she was not on
rolls, not acceptable — Details of extensions granted to her also show that her
reporting for duty on 20.3.2019 instead of 18.3.2019 or 19.3.2019 cannot be taken
against her in as much as all extensions have been made with a break of at least one
day — Appellant, working with Respondents for five years, granted repeated
extensions — No Complaint regarding her performance — Declining grant of
extension due to her pregnancy would amount to penalizing a woman for electing to
become a mother while still employed — And, violative of basic Principles of
Equality and also depriving her protection under Articles 14, 16 & 21 of
Constitution of India — Service Law recognizes Principle of ‘Last Come First Go’
— Appellant herein was senior-most among four other Ad hoc Assistant Professors,
who have been continued as Ad hoc till date — On this score also act of
Respondents neither reasonable nor justifiable assuming that non-availability of
Appellant on 27.3.2019 was real reason for non-extension — Contention that
Contract for Employment cannot be specifically enforced not tenable as it is clear
from law laid down in Executive Committee, Vaish Degree College v. Lakshmi
Narayan, 1976 (1) LLN 474 (SC), that where termination or dismissal is invalid being
contrary to Principles of Natural Justice or in violation of a Statute, question would
rather become one of enforcement of right to protection against unlawful action —
Validity of Termination Order is subject to Judicial Review to determine whether
action of Respondent was illegal, perverse, unfair or irrational — In view of matter,
held, impugned Judgment not sustainable and set aside — Termination Order, dated
29.5.2019 quashed and Respondents directed to appoint Appellant forthwith to post of
Assistant Professor on Ad hoc basis till such time vacant posts are filled through
regular appointments — Appeal allowed with Cost of `50,000 imposed on
Respondent Nos.1 & 2 — Pending Applications disposed of. Manisha Priyadarshini v.
Aurobindo College - Evening (DB) (Del.) (Asha Menon, J.) 2021 (1) LLN 134
MINES ACT, 1952 (35 OF 1952)
— Section 2(1)(j) — Contract Labour (Regulation and Abolition) Act, 1970 (37 of
1970), Sections 2(a), 2(e), 3 & 10(1) — ‘Appropriate Government’ —
‘Establishment’ — Definitions — Constitution of Central Advisory Contract Labour
Board [CACLB] — Prohibition of employment of Contract Labour — ‘Mines’ —
Meaning — Challenge under OJC No.5277/1994 is by Petitioner to validity of
Notification, dated 23.3.1993 issued by UoI under Section 10(1) of CLRA
prohibiting employment of Contract Labour in specified works in Manganese Mines
in Country — Writ Appeal has been filed by UoI impugning Judgement, dated
3.4.2015 by Single Judge allowing Petition of Aryan Mining holding that
Notification, dated 23.3.1993 is not applicable to Petitioner’s establishment-
Manganese Mines — W.As. 355 & 356 of 2015 also filed by UoI impugning
Judgement, dated 3.4.2015 of Single Judge, allowing Writ Petitions of Patnaik
Minerals and B.D Patnaik Ltd. holding Notification, dated 17.3.1993 is not
applicable to Petitioner’s establishment being not passed by ‘Appropriate
Government’ i.e. State Government — Held, ‘Appropriate Government’ as defined
in CLRA 1970 r/w Section 2(a)(i) of ID Act 1947 in respect of Mines has to be
Central Government and not State Government as held in matter of Bishra Stone &
Lime Co. Ltd. v. Union of India, 2007 (103) CLT 461 —Since Single Judge in
impugned Writ Appeals neither noted complete definition of ‘Appropriate
Government’ in Section 2(a)(i) as to what includes a “mine” making Central
Government as Appropriate Government, nor noticed referred decision of Division
Bench, upholding validity of very same Notification, dated 17.3.1993, impugned
decisions for these reasons shall be per incuriam — Court’s view fortified from
Judgement of Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra,
2014 (16) SCC 623 — In view of matter, OJC No.5277/1994 dismissed — Writ
Appeal Nos.355,356 & 357 of 2015 succeed and allowed — Consequently OJC
9630/1993, OJC 9632/1993 and OJC 2172/1994 stand dismissed. Orissa Mining
Corporation Ltd. v. Union of India, Ministry of Labour (DB) (Ori.) (Mohammad Rafiq,
C.J.) 2021 (1) LLN 412
— Section 9-A — Mines Rules, 1955, Rules 29-B, 29-J, 29-K, 29-M & 82-A —
Facilities for occupational health survey — Periodical Medical Examination —
Appeal for re-examination — Unfit persons not to be employed — Right to file
Appeal against assessment of Medical Authority — Entitlement to retire and get
allowances — MoU, dated 21.2.2000 — National Coal Wage Agreement-VI —
Provision of alternate employment on Medical grounds — Right of dependent to
employment — Remedy of Appeal against decision of Corporate Medical Board —
Denial of remedy of Appeal — Whether fatal — Petitioners aggrieved by decision
of Respondent-SCCL in providing them alternative job on surface instead of retiring
them on Medical grounds by extending other benefits including employment to
dependent — Held, Act recognize providing alternate employment, if Employee is
declared unfit to hold present job due to ill health that too if unfitness directly
attributed to employment — Act and Rules do not prohibit alternative employment
rather endorse provision of alternative employment — No merit in contention that
denial of Retirement on Health grounds violates Factories Act, Employees
Compensation Act and Disability Act — Act, Rules and NCWA-VI all envisage
providing of dependent employment only if Employee’s health status makes him
unemployable and not otherwise — In all cases, Petitioners have not reached stage
of unemployability and are fit to do alternative job — Hence, they cannot insist
upon Retirement and dependent employment — An Employee can be retired and
dependent employment can be provided only if he is declared unemployable — If
any Employee aggrieved by assessment of Fitness made by Medical Authority of
Employer, he can prefer Appeal — Consent of Employer to file Appeal not
envisaged by Act or Rules — Without availing remedy of Appeal, Petitioners opted
to institute present Petitions raising several grounds — Non-furnishing of Assessment
Report of Medical Board is no ground against not availing remedy of Appeal — In
absence of attributing mala fides, it cannot be said that Medical Board made wrong
assessment — Contention that without consent of Employee, no other job be given to
him, not tenable as none of Circulars/OMs have been challenged — Further Item No.4
of MoU, dated 21.2.2000 provide for alternative employment — This was agreed by
majority Union and binding on all Employees — Hence, no consent of Employee
required for alternative job — It is prerogative of Employer to use services of
Employee in whatever manner he requires in larger interest of Company — Employer,
instead of terminating services of Petitioners, providing alternative jobs with
protection of emoluments — It cannot be said that their Service conditions are affected
to their disadvantage — Further there is no compulsion on Employees to accept
alternative jobs and they can seek Retirement from service — Hence, if an Employee
is declared unfit to do job held by him, Respondent is competent to offer alternate job
— Dependent employment can be provided, only if Employee is declared
unemployable — Decision of Respondent calls for no interference — Writ Petitions
dismissed. Marikukkala Ramulti v. Chairman & Managing Director, Singareni
Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.) 2021 (1) LLN 436
MINES RULES, 1955
— Rules 29-B, 29-J, 29-K, 29-M & 82-A — Mines Act, 1952 (35 of 1952), Section
9-A — Facilities for occupational health survey — Periodical Medical Examination
— Appeal for re-examination — Unfit persons not to be employed — Right to file
Appeal against assessment of Medical Authority — Entitlement to retire and get
allowances — MoU, dated 21.2.2000 — National Coal Wage Agreement-VI —
Provision of alternate employment on Medical grounds — Right of dependent to
employment — Remedy of Appeal against decision of Corporate Medical Board —
Denial of remedy of Appeal — Whether fatal — Petitioners aggrieved by decision
of Respondent-SCCL in providing them alternative job on surface instead of retiring
them on Medical grounds by extending other benefits including employment to
dependent — Held, Act recognize providing alternate employment, if Employee is
declared unfit to hold present job due to ill health that too if unfitness directly
attributed to employment — Act and Rules do not prohibit alternative employment
rather endorse provision of alternative employment — No merit in contention that
denial of Retirement on Health grounds violates Factories Act, Employees
Compensation Act and Disability Act — Act, Rules and NCWA-VI all envisage
providing of dependent employment only if Employee’s health status makes him
unemployable and not otherwise — In all cases, Petitioners have not reached stage
of unemployability and are fit to do alternative job — Hence, they cannot insist
upon Retirement and dependent employment — An Employee can be retired and
dependent employment can be provided only if he is declared unemployable — If
any Employee aggrieved by assessment of Fitness made by Medical Authority of
Employer, he can prefer Appeal — Consent of Employer to file Appeal not
envisaged by Act or Rules — Without availing remedy of Appeal, Petitioners opted
to institute present Petitions raising several grounds — Non-furnishing of Assessment
Report of Medical Board is no ground against not availing remedy of Appeal — In
absence of attributing mala fides, it cannot be said that Medical Board made wrong
assessment — Contention that without consent of Employee, no other job be given to
him, not tenable as none of Circulars/OMs have been challenged — Further Item No.4
of MoU, dated 21.2.2000 provide for alternative employment — This was agreed by
majority Union and binding on all Employees — Hence, no consent of Employee
required for alternative job — It is prerogative of Employer to use services of
Employee in whatever manner he requires in larger interest of Company — Employer,
instead of terminating services of Petitioners, providing alternative jobs with
protection of emoluments — It cannot be said that their Service conditions are affected
to their disadvantage — Further there is no compulsion on Employees to accept
alternative jobs and they can seek Retirement from service — Hence, if an Employee
is declared unfit to do job held by him, Respondent is competent to offer alternate job
— Dependent employment can be provided, only if Employee is declared
unemployable — Decision of Respondent calls for no interference — Writ Petitions
dismissed. Marikukkala Ramulti v. Chairman & Managing Director, Singareni
Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.) 2021 (1) LLN 436
MINIMUM WAGES ACT, 1948 (11 OF 1948)
— Sections 2(b), 2(h), 3, 4, 5 & 5(2) r/w 5(1)(b) — ‘Appropriate Government’ —
‘Wages’ — Definitions — Fixation of minimum rates of Wages — Minimum Rates
of Wages — Procedure for fixing and revising Minimum Wages — State
Government issued Notification in respect of 37 Sectors of employment in State
fixing Minimum Wages — Apart, three final Notifications withdrawn by State
Government in respect of Textile Industry, Spinning Mill Industry, Cloth Dyeing
and Printing Industry — One Draft Notification was also withdrawn in respect of
Tailoring Industry — Union filed W.P. No.18621/2018 challenging withdrawal of
four Notifications — W.P. was dismissed and Union filed W.A. No.1520/2019
against dismissal of W.P. — Remaining W.Ps. filed by Employers challenging
particular Notifications — Certain parts of impugned Notifications quashed by
Single Judge without disturbing rates of Minimum Wages fixed thereunder — In
W.P. filed by Union, direction was issued to State Government to accomplish
fixation/revision of Minimum Wages in respect of Sectors under impugned
Notifications within six months vide Order, dated 29th March 2019 — Present
Appeals arise out of Order, dated 29th March 2019 — Held, as per Clause (b) of
sub-section (1) of Section 3, Minimum Wages required to be revised periodically
which can be maximum five years and in case of non-revision, State Government
empowered to do so — Appropriate Government has two options under Section 5
for fixation or revision of Wages — Under Clause (a), option is to appoint a
Committee to hold Inquiry and advise Government about fixation or Revision —
Under Clause (b) it has to publish proposal of fixation/revision for information of
persons likely to be affected — There is power to revise Minimum Wages even by
reducing same by exercising power under Section 5(2) of 1948 Act — However,
power to revise or review cannot be exercised by withdrawing Final Notifications —
Withdrawal of Notifications cannot be termed a step in aid of revision of rates of
Wages — Notifications vested a right in Employees entitling them to get minimum
fixed under Notifications — Hence, vested rights to get Wages fixed under three
Notifications could not be taken away without revising rates under provisions of
Section 3 r/w Section 5 of 1948 Act — However, situation regarding fourth
withdrawn Notification is different as said Notification not fixed rates but it was
only proposal to State Government for fixing minimum rates — Exercise of power
by Appropriate Government in fixing rates of Minimum Wages is neither Quasi-
Judicial nor Administrative but legislature delegated power to Appropriate
Government to fix Minimum Wages which is legislative function — Contention that
non-adopting of option under Clause (a) of Section 5(1) is discriminatory, not
tenable as Statute provides for two options and merely because one option is
exercised, it cannot be said to be discriminatory as held in Chandra Bhavan
Boarding and Lodging v State of Mysore, AIR 1970 SC 2042 — Contention
regarding improper constitution of Advisory Board not acceptable as no impropriety
found therein — In view of matter, impugned Order relating to W.A. 1520/2019 set
aside and W.P. 18621/2018 allowed — Impugned Notification, dated 22nd March
2018 set aside — Three Final Notifications, dated 30th December 2017 and
Preliminary Notification, dated 22nd February 2018 stand revived — State
Government directed to take further steps on basis of Draft Notification, dated 22nd
February 2018 as per Section 5 of 1948 Act — Aggrieved parties at liberty to
challenge three revived Notifications in accordance with law — Open to State to
undertake revision of Minimum Wages fixed under three Notifications — Regarding
W.As. of Employers, impugned Judgment stands confirmed with modification that
entire Clause 3 of impugned Notification stand set aside — Appeal partly allowed
accordingly — Judgment to remain in abeyance for twelve weeks to enable
aggrieved parties to approach higher Court. Private Hospital & Nursing Homes
Association, Phana v. Secretary, Labour Department, Government of Karnataka (DB)
(Kar.) (Abhay Shreeniwas Oka, C.J.) 2021 (1) LLN 225
— Sections 2(i) & 20 — Allahabad High Court Rules, 1952, Chapter VIII, Rule 5
— ‘Employee’ — Definition of — Daily Wagers — Claims under Act —Whether
Authority/Labour Commissioner exercising jurisdiction under Act, acts as a
‘Tribunal’ — Maintainability of Special Appeal — Case of Appellant that he was
employed as Daily Wager in PWD for Salary at `240 per days from 7.11.1984 to
31.7.1990 — His Wages and Dearness Allowance not been paid — Filed Writ
Petition No.991 of 2011 — Court directed to file Claim Petition under Section 20 of
Minimum Wages Act — Authority under Act dismissed Claim Petition on ground
that there is no provision under Act for D.A. and other Daily Wages — Aggrieved,
Appellant filed Writ Petition — Single Judge dismissed it observing that he was not
Employee within meaning of Section 2(i) of Act as he was not employed against
existing vacancy and also that he is not covered under Notification, dated
21.10.2005 which was relating to employment in Agriculture sector only and he was
employed with PWD — On challenge, held, ‘Authority’ under Minimum Wages
Act, 1948 particularly Section 20 thereof is constituted by State and invested with
Judicial powers as distinguished from purely Administrative or Executive functions
— Therefore, under Section 20, proceedings before ‘Authority’ have ‘trapping of a
Court’ — Applying test laid down in referred cases, held, ‘Authority/Labour
Commissioner’ acts as ‘Tribunal’ — As a result instant Special Appeal not
maintainable under Rule 5, Chapter VIII of Allahabad High Court Rules, 1952 —
Special Appeal dismissed at admission stage. Uttam Singh v. State of Uttarakhand
(DB) (Utt.) (Alok Kumar Verma, J.) 2021 (1) LLN 473
ORISSA SERVICE CODE, 1939
— Rule 72 — Mental Ailment — Leave for more than 5 years — Eligibility of —
Respondent absent from service for 7 years citing Mental illness — Leave for
Government Servant for more than 5 years stipulated in Rule 72 only in exceptional
cases — In instant case, self-serving Medical Certificate produced by Respondent to
justify leave of 7 years on account of claimed Mental illness — Respondent, held, did
not produce himself before Authority to verify his Medical status — No exceptional
circumstances in Respondent’s case justifying leave of more than 5 years. State of
Odisha v. Ganesh Chandra Sahoo (SC) (Hrishikesh Roy, J.) 2021 (1) LLN 25
PAYMENT OF GRATUITY ACT, 1972 (39 OF 1972)
— Grounds for Forfeiture — Submission of false Educational Certificate —
Whether amounts to Moral Turpitude — Respondent appointed as Badli Worker and
afterwards appointed as Security Guard — Tendered School Certificate indicating
his qualification as 8th Class pass — Anonymous Complaint received that he
submitted false Certificate — Departmental Enquiry initiated and dismissed after
enquiry — After issue of Show Cause Notice, Gratuity forfeited for having
committed act which amounts to Moral Turpitude — Respondent approached
Controlling Authority who allowed Application and directed Petitioner to pay
Gratuity with Interest at 10% w.e.f. 2.3.2014 one month after his dismissal —
Appeal of Petitioner dismissed by Appellate Authority — On challenge, held,
Respondent continued in employment for 24 years and dismissed one day before
Superannuation date — There is nothing on record to indicate that his conduct was
detrimental to interest of organization on account of his education — Whether
Respondent was 8th Standard qualified or not, did not affect his duties as Security
Guard — In peculiar facts, Respondent must not gather impression that he got away
with fraudulent act and law was unable to punish him — Respondent agreeable to
waive 50% of Gratuity as commensurate punishment for misconduct — In view of
matter, Petition allowed partly — Impugned Judgments stand modified accordingly
— Respondent at liberty to withdraw 50% Gratuity with accrued Interest — 50%
amount to be returned to Employer by Controlling Authority — Rule made partly
absolute accordingly. Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields
Ltd. v. Narayan Karu Dahekar (Bom.) (R.V. Ghuge, J.) 2021 (1) LLN 96
— Sections 1(3) & 2(e) — Factories Act, 1948 (63 of 1948), Section 2(1) —
Payment of Gratuity Rules, 1972, Rule 10(1) — Contract Labour (Regulation and
Abolition) Act, 1970 (37 of 1970) — Application of Act — ‘Employee’ —
Definition — ‘Worker’ — Definition — Application to Controlling Authority for
direction — Entitlement of Contract Workers to Gratuity — ‘Sham Contracts’ —
Petitioners engaged Contractors through Manpower Samities — Respondent-3 was
Workman of Samiti run by Respondent-4 — Respondent-3 superannuated on
31.3.2012 — Approached Petitioner and Respondent-4 for payment of Gratuity
which was not paid — Filed application before Controlling Authority which was
dismissed — On Appeal, Appellate Authority ordered payment of Gratuity to
Respondent 3 with 10% Interest from 1.4.2012 — On challenge, held, Section 1(3)
of Act not certainly excludes Contractor’s establishment from purview of Gratuity
Act and Contract Labour covered under Act — Under Gratuity Act, Employee and
under Factories Act, Workers include a Contract Workers — Contention that
Respondent was not direct Employee of Petitioner-Company and they are not liable
to pay Gratuity as there was no Employer-Employee relationship, not tenable —
Further, PF contribution of Workmen being deposited and Register of Records
maintained and superannuated at 60 years of age though Contract Labour has no
Retirement age as per Contract Labour (R&A) Act, 1970 — Facts sufficient to hold
that Principal Employer is Petitioner and Contract between Society and Principal
Employer is just a paper arrangement — No illegality or infirmity in impugned
Order — Writ Petition dismissed being meritless — Petitioner-Management directed
to pay Gratuity as determined by Appellate Authority within eight weeks — Pending
I.A. disposed of accordingly. Heavy Engineering Corporation Ltd. v. Union of India,
through Deputy Chief Labour Commissioner (Central), Dhanbad (Jhar.) (Dr. S.N.
Pathak, J.) 2021 (1) LLN 217
— Sections 2(s), 4(1), 4(2) & 14 — ‘Wages’ — Definition — ‘Interim relief’ —
Whether Wages for purpose of calculation of Gratuity — Payment of Gratuity —
Overriding effect of Act — Third Respondent employed with Petitioner retired under
Voluntary Retirement Scheme (VRS) — Gratuity calculated taking into account Basic
Pay and Dearness Allowance — `800 per month drawn as Interim Relief not been
included while calculating Gratuity — Application filed before Controlling Authority
under Act, was allowed — On Appeal by Petitioner, Appellate Authority dismissed
Appeal — On challenge, held, scheme of VRS no more than a Contract framed
under policy of Petitioners, would be subservient to Act and a fortiori to rights of
Employee to receive Gratuity as per provisions of Act — As held in A.K. Bindal v.
UoI, 2003 (5) SCC 163, right to receive other emoluments after accepting retirement
under VRS cannot be compared with Statutory entitlement at rate prescribed under
Act — It would be in interest of both Employer and Employee that calculation of
Gratuity which forms part of VRS be always done in accordance with provisions of
Act — Interim Relief claimed by Employee to be part of his ‘Wages’ for reckoning
his Wages last drawn at time of retirement under VRS — Authorities below did not
commit any manifest error of law in including Interim Relief to figure of Wages last
drawn by Third Respondent — There is little difference in retirement on
Superannuation or otherwise as evident from provisions of Section 4(1) —
Resignation, a contingency, which after five years of more of continuous service
would entitle Employee to Gratuity under Act — Findings of Controlling Authority
and Appellate Authority, may be for different or added reasons, are unassailable —
Writ Petition dismissed with Costs — Amount of Gratuity deposited with
Controlling Authority directed to be paid within 15 days. U.P. Financial Corporation
v. Appellate Authority under Payment of Gratuity Act (All.) (Jahangir Jamshed Munir,
J.) 2021 (1) LLN 52
— Sections 4(1) & 4(6) — Payment of Gratuity — Grounds for forfeiture of
Gratuity — Respondent-3 working as Daftri with Petitioner-Bank — Served
Charge-sheet for misconduct and was terminated after Departmental Enquiry —
Gratuity of Respondent not paid by Petitioner-Bank —Respondent-3 moved
Application before Controlling Authority under Act, which was allowed holding that
grounds of Dismissal were not that Respondent-3 caused financial loss to Petitioner-
Bank — Hence, Gratuity cannot be withheld — On Appeal by Bank, Order of
Controlling Authority upheld by Appellate Authority/Regional Labour
Commissioner — On challenge, held, admittedly, Bank failed to quantify loss or
damage caused to Bank — Even it be presumed that Respondent caused loss to
Bank, Bank can withhold only that much amount of Gratuity equal to loss caused —
On vague assertions without quantifying loss, Gratuity of Respondent-3 could not be
withheld or forfeited under sub-section (6) of Section 4 of Act — No reason to
interfere with impugned Order — Writ Petition dismissed — Amount deposited
with Court along with Interest directed to be remitted to Respondent within two
weeks. Central Bank of India v. Regional Labour Commissioner (Central), Dehradun
(Utt.) (Sudhanshu Dhulia, J.) 2021 (1) LLN 470
PAYMENT OF GRATUITY RULES, 1972
— Rule 10(1) — Payment of Gratuity Act 1972 (39 of 1972), Sections 1(3) & 2(e)
— Factories Act, 1948 (63 of 1948), Section 2(1) — Contract Labour (Regulation
and Abolition) Act, 1970 (37 of 1970) — Application of Act — ‘Employee’ —
Definition — ‘Worker’ — Definition — Application to Controlling Authority for
direction — Entitlement of Contract Workers to Gratuity — ‘Sham Contracts’ —
Petitioners engaged Contractors through Manpower Samities — Respondent-3 was
Workman of Samiti run by Respondent-4 — Respondent-3 superannuated on
31.3.2012 — Approached Petitioner and Respondent-4 for payment of Gratuity
which was not paid — Filed application before Controlling Authority which was
dismissed — On Appeal, Appellate Authority ordered payment of Gratuity to
Respondent 3 with 10% Interest from 1.4.2012 — On challenge, held, Section 1(3)
of Act not certainly excludes Contractor’s establishment from purview of Gratuity
Act and Contract Labour covered under Act — Under Gratuity Act, Employee and
under Factories Act, Workers include a Contract Workers — Contention that
Respondent was not direct Employee of Petitioner-Company and they are not liable
to pay Gratuity as there was no Employer-Employee relationship, not tenable —
Further, PF contribution of Workmen being deposited and Register of Records
maintained and superannuated at 60 years of age though Contract Labour has no
Retirement age as per Contract Labour (R&A) Act, 1970 — Facts sufficient to hold
that Principal Employer is Petitioner and Contract between Society and Principal
Employer is just a paper arrangement — No illegality or infirmity in impugned
Order — Writ Petition dismissed being meritless — Petitioner-Management directed
to pay Gratuity as determined by Appellate Authority within eight weeks — Pending
I.A. disposed of accordingly. Heavy Engineering Corporation Ltd. v. Union of India,
through Deputy Chief Labour Commissioner (Central), Dhanbad (Jhar.) (Dr. S.N.
Pathak, J.) 2021 (1) LLN 217
PREVENTION OF CORRUPTION ACT, 1988 (49 OF 1988)
— Sections 7, 13(1)(d) & 13(2) — Disciplinary Proceedings — Scope of Judicial
Review — Respondent was working as Police Inspector at Mysore — On
Complaint, Lokayukta Police laid trap and filed Criminal Complaint — Special
Judge acquitted Respondent after trial — Departmental Enquiry initiated against
Respondent and he was dismissed — Departmental Appeal filed by Respondent
dismissed — OA filed in Administrative Tribunal which set aside Order of dismissal
— On challenge, High Court found discrepancies in evidence of Witnesses — On
challenge, held, interference with Order of Punishment by Tribunal as affirmed by
High Court suffers from patent error — Powers of Judicial Review confined to
decision making process — In Union of India v. P. Gunasekaran, 2015 (2) SCC
610, Court held that while appreciating evidence, High Court cannot act as
Appellate Authority in Disciplinary proceedings and laid down parameters as to
when High Court shall not interfere in Disciplinary proceedings — In instant case, it
is not case of no evidence or that findings are perverse — Findings interfered with
on ground of discrepancies in evidence of Department — Enquiry Officer
appreciated evidence and held Respondent guilty of misconduct — Disciplinary
Authority agreed with findings of Enquiry Officer and passed Order of Punishment
— Once evidence accepted by Departmental Authority, Tribunal or High Court
could not interfere with findings of facts by reappreciating evidence as if Courts are
Courts of Appeal — Orders of Tribunal and High Court suffers from patent
illegality and unsustainable — Appeal allowed — Orders of Tribunal and High
Court set aside — Order of Punishment imposed restored — Constitution of India,
Articles 226 & 227. State of Karnataka and others v. N. Gangaraj (SC) (Hemant Gupta,
J.) 2021 (1) LLN 18
REFERENCE
— Recovery of money due from Employer — Gainful employment during
Termination period — Burden of proof — Respondent-Workman raised Industrial
Dispute over his Termination — Labour Court found Termination to be unlawful
and directed Reinstatement with 50% Back Wages — Challenge to by Employer to
Reinstatement and grant of 50% Wages, whereas Workman sought 100% Back
Wages — Upon challenge before Single Judge, Award of Labour Court upheld and
Petition of Workman impliedly stood dismissed — On challenge by Employer-
Appellant, held, Burden of proof by way of Affidavit of being employed or not rests
upon Workman exclusively — Once Workman states on oath about his non-
employment, only then burden of proof shifts upon Employer — Workman, in
Claim Statement, pleaded about his non-employment but in subsequent oath
followed by cross-examination, Workman did not utter a single word on oath about
being not gainfully employed after Termination — Thus, neither on strength of law
laid down in J.K. Synthetics v. K.P. Agarwal, 2007 (2) SCC 433, nor on anvil of law
in Deepali Gundu Surwase v. Kranti Junior Adhyapak, 2013 (10) SCC 324,
Workman could prove factum of his being not gainfully employed after Termination
— Single Judge not considered issue involved in right perspective and took
sympathetic view considering Act being piece of beneficial legislation — Finding of
Labour Court holding Workman entitled to 50% Back Wages is perverse — Labour
Court overstepped its jurisdiction while granting impugned relief — Findings
rendered by Single Judge need interference of High Court — Impugned Orders set
aside — Appeal allowed — Industrial Disputes Act, 1947 (14 of 1947), Sections 10
& 33-C(ii). State of M.P. and others v. Ramadhar Pal (DB) (MP) (Sheel Nagu & Rajeev
Kumar Shrivastava, JJ.) 2021 (1) LLN 403
— Scope of — Industrial Disputes Act, 1947 (14 of 1947), Sections 2(oo), 2(a)(ii),
25-N & 25-O — Working Journalists and other Newspaper Employees (Conditions
of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955), Sections 2(dd),
2(f) & 3 — Appropriate Government to refer Industrial Dispute — Retrenchment —
Conditions precedent to retrenchment — Procedure for closing down undertaking —
Sham Closure —‘Non-journalist Newspaper Employee’ — ‘Working Journalist’ —
Applicability of Central ID Act to working journalists — Respondent-2 joined
Petitioner as Apprentice in trade of Plate-making — Terminated due to installation
of CTP Machine — However, Process Department not closed due to installation of
CTP — It is alleged that some new persons also recruited and some others retained
— Respondent’s services terminated without Notice in violation of provisions of
Act —Industrial Dispute raised — Labour Court held Termination illegal and
ordered Reinstatement with continuity of service and 50% Back Wages — On
challenge, held, Section 3 of Working Journalists Act extends application of Central
ID Act, to Working Journalists subject to modifications envisages under sub-section
(2) — Newspaper establishment would clearly fall under sub-clause (ii) of Clause
(a) of Section 2, making Appropriate Government relating to Newspaper
establishment a State Government under Central Act — Reference of dispute under
Section 4-K of State Act, held to be a valid reference — A Plate Maker, a mere
technical hand and a Workman — As per recommendations of Manisana Wage
Board, Plate Maker, a Workman, not a Working Journalist within meaning of
Working Journalists Act — Labour Court reasonably concluded that there was no
closure of part of Unit or Undertaking — Process Department continue to function,
may be with changed technology — Change over to CTP Machines not led to
dispensation of services of Plate Makers like Respondent-Workman — Labour
Court rightly concluded that closure pleaded by Petitioner is a ‘sham’ to get rid of
Respondent — Retrenchment held to be in breach of Section 25-N — Workman,
superannuated during pendency of Writ Petition, cannot be reinstated — His salary
revised according to recommendations of Wage Board — Detailed Calculation
furnished by Workman showing his entitlement worked at 50% of his Wages in
terms of Award at `14,70,137 — Since Workman did not render any service during
entire period till Superannuation, ends of justice would meet by modifying Award to
payment of `6.00 Lakhs towards full and final satisfaction of claim to be paid within
two months failing which Interest at 6% to be paid — Workman entitled to Cost of
`20,000 — Writ Petition partly allowed — Uttar Pradesh Industrial Disputes Act,
1947 (28 of 1947), Section 4-K. Jagran Prakashan Limited v. Presiding Officer,
Labour Court (All.) (Jahangir Jamshed Munir, J.) 2021 (1) LLN 62
SERVICE LAW
— Armed Service — Police — Unauthorised absence — Order of Discharge —
Whether warranting interference — Respondent serving as Follower Orderly,
availed leave for nine days, but did not report to duty for 7 years — Stand of
Respondent that he was suffering from Mental illness — In spite of multiple Notices
and Letters, Respondent failed to appear before CMDO for verification of his
Medical status — After conduct of Disciplinary Inquiry, Order of Discharge from
service passed against Respondent in year 1993 — Tribunal refused to interfere with
same — High Court in Writ Petition, modified punishment from Discharge to one of
Compulsory Retirement — Held, No infirmity with Disciplinary proceeding leading
to Discharge Order — Medical Certificate produced by Respondent pertaining to
year 1998, but no mention that he was suffering from Mental illness from year 1991
— Moreover, said Certificate made on basis of referral of local MLA — Doctor
issuing Certificate likely did not treat Respondent — In such circumstances, Order
of Discharge passed against Respondent, upheld — Judgment of High Court
modifying same, erroneous and set aside — Appeal allowed. State of Odisha v.
Ganesh Chandra Sahoo (SC) (Hrishikesh Roy, J.) 2021 (1) LLN 25
— Back Wages — In full — Entitlement to — Appellant-Employee, who was
reinstated in service, aggrieved that she was not awarded full Back Wages — Held,
no proof or pleading submitted by Appellant that she was not gainfully employed
elsewhere during relevant period — In absence of same, Order of Single Judge
rejecting claim of Appellant for Back Wages in full, not interfered with — Writ
Appeal dismissed. Munni Bai Sen v. M.P. State Agriculture Marketing Board, Bhopal
(DB) (MP) (Ravi Shankar Jha, A.C.J. & Vijay Kumar Shukla, J.) 2021 (1) LLN 401
— Leave Encashment — Daily Wagers — Settled law that Workers, who had
completed 10 years as Daily Wagers to be treated as Permanent Employees —
Petitioners, held, to be extended 300 days of privilege leave and also Pensionary
benefits including Terminal benefits by counting service from initial date of
Appointment and benefits in terms of 300 days’ privilege leave and revised
pensionary arrears to be paid within 8 months from date of Order — Application
allowed. Rameshbhai Laxmanbhai Khristi v. State of Gujarat (Guj.) (Biren Vaishnav,
J.) 2021 (1) LLN 205
— Recovery of Salary paid — Whether warranted — Petitioner to retire from
service at age of 60 — However, six months before date of Retirement, Order
passed by Employer that Retirement age of Petitioner should be considered as 58
years and not 60 years — And, ordered recovery of Wages for period of 2 years —
Held, not a case of misrepresentation by Petitioner — Miscalculation in age of
Retirement of Petitioner was fault of Respondents and not that of Petitioner —
Consequently, Order of Recovery of Salary of Petitioner, erroneous and set aside —
Respondents directed to consider 60 years as age of Retirement of Petitioner and
grant all Terminal benefits accordingly — Writ Petition allowed. Chandrasinh
Relibhai Chaudhari v. State of Gujarat (Guj.) (Biren Vaishnav, J.) 2021 (1) LLN 195
— Reinstatement with Back Wages — Justifiability —Respondent-Workman
raised Industrial Dispute over his Termination — CGIT awarded Reinstatement
with 40% Back Wages — On challenge, held, facts of instant case identical to
facts in PWD v. Satya Pal, 2006 (132) DLT 571 (DB) — No substance in
contention of Appellant that he should not be saddled with liability for period,
when Respondent was out of service — Respondent equally cannot be expected to
suffer for delay in disposal of his claim by Tribunal — No case of Appellant that
Respondent caused delay in disposal of case by Tribunal — In view of law laid
down in Satya Pal, there is no reason to interfere with impugned Order — Writ
Petition being without merit dismissed. Executive Engineer, Division-CPWD v.
Bijender (Del.) (Najmi Waziri, J.) 2021 (1) LLN 175
— Reversion — Principles of Natural Justice — Whether followed — Decision of
Municipal Commissioner reverting R1 from post of Town Planner — No Show
Cause Notice or opportunity of being heard given to R1 before passing said Order
— Held, reversion of Employee, a matter of substantive prejudice — Order of
Reversion passed in instant case without following Principles of Natural Justice,
unsustainable and set aside — Appeal allowed. Aurangabad Municipal Corporation
v. Jayant (SC) (Dr. D.Y. Chandrachud, J.) 2021 (1) LLN 32
STANDARDS OF CONDUCTS AND PERFORMANCE OF HR
POLICY (PLL)
— Section 4 — Delegation of Authority [DoA] Manual, Clause 4.14 — HR Policy,
Clause 4.4.3.6 — Companies Act, 2013 (18 of 2013), Section 178 — Exercise of
Powers pertaining to HR — Competent Authority for Disciplinary Action and
awarding punishment — Following of process by HR Department — Procedure for
imposing penalty of Removal — Petitioner, an Officer of Senior Level in Petronet
LNG Ltd. is a whistle blower against corruption and made representations to
Chairman of Company as well as CVC and Director-CBI — Aggrieved by this,
Respondent-6 started victimization of Petitioner and issued Charge-sheet to him
without any Preliminary Enquiry — Reply submitted by Petitioner not found to be
satisfactory and he was asked to defend himself before Inquiry Committee —
Petitioner wrote to CMD/Respondent-6 that Committee has no legal force as same
not constituted with approval of Chairman/Board of Directors — Request of
Petitioner to allow him as an Assisting Officer, was declined and Inquiry proceeded
ex parte — Inquiry Committee held charges as proved against Petitioner and asked
Petitioner to submit his Reply within a week failing which Order will be passed —
Petitioner did not file his Representation on being granted further time, instead filed
present Petition challenging Inquiry Report and Charge-sheet — Held, Charge-sheet
sent through Reporting Officer carried approval of MD & CEO — Initiation of
Disciplinary proceedings according to applicable Rules of Company — As per
Clause 4.14 of DoA Manual powers pertaining to HR vests with MD & CEO — As
per Clause 4.4.3.6 of HR Policy, Competent Authority for Disciplinary action and
punishment is MD & CEO for Officers and Directors concerned — Section 4 of HR
Policy (PLL) clearly lays down process to be followed by HR Department in
consultation with MD & CEO for any action including Disciplinary action — Thus,
MD & CEO is Competent Authority and has full powers for initiation of
Disciplinary action against any Officer of PLL — If penalty of Removal is imposed,
procedure prescribed under Section 178 of Companies Act required to be followed
— However, for minor and other penalties, MD & CEO would be Competent
Authority — Court finds from record that MD & CEO approved issuance of Charge-
sheet — Hence, contention of Petitioner and ration of Judgments relied upon are of no
assistance to Petitioner — In view of allegations of corruption, Chief Vigilance
Commissioner directed to inquire into allegations made by Petitioner against
Respondent 6 and take action as per law — Petitioner given liberty to file response to
findings of Inquiring Authority within three weeks — On receipt of response,
Respondent to consider same and pass Order as per law — Writ Petition disposed of
accordingly. Rajeev Agarwal v. Union of India (Del.) (Suresh Kait, J.) 2021 (1) LLN 152
TRANSFER
— Justification — Unauthorized absence — Denial of employment — Abandonment
of job — Espousal of cause by Union — Territorial jurisdiction to decide Reference
— Respondent-Workman employed as Assistant Photographer with Appellant —
Transferred to Mumbai, which was challenged by raising Industrial Dispute —
Transfer found unjustified and he was directed to be reinstated with 50% Back Wages
and again transferred to Delhi — Disciplinary action initiated for unauthorized
absence but action not continued — Alleging denial of employment, Industrial Dispute
raised — Workman represented by Union — Industrial Tribunal concluded that there
was denial of employment which Order impugned before Single Judge, who
confirmed Order of Industrial Tribunal — On challenge, held, Workman was member
of Union in question, who espoused cause of Workman from initial stage — Once
Reference made at instance of Union, it is not open to Management to contend at this
stage that cause of Workman not espoused by Union — Issue of territorial jurisdiction
cannot be raised at this late stage — Complaint made before Competent Authority
where Head Office of Appellant functioning pursuant to which Conciliation
proceedings took place — Complaint of denial of employment, though he was
transferred to Delhi, can be raised where Management has Head Office and need not
be at place where Workman actually worked — Cause of action would arise also
where Head Office located — It is settled law that Writ Court should not interfere in
matters decided by Tribunal on factual consideration of material placed on record —
Tribunal, having considered material arrived at conclusion about denial of
employment — Single Judge also not interfered with said findings — No perversity
found in impugned Orders — Tribunal granted only 50% Back Wages — A person,
who denied employment would be entitled to continuity in service and Back Wages —
No ground to interfere with such findings — Appeal dismissed — Labour Law.
Mangalam Publications (India) Pvt. Ltd. v. Saju George (DB) (Ker.) (A.M. Shaffique, J.)
2021 (1) LLN 373
UTTAR PRADESH INDUSTRIAL DISPUTES ACT, 1947 (28 OF 1947)
— Sections 2-A & 2-K — Industrial Dispute — Reference — Delay in raising
dispute —Suppression of facts — Effect — It is case of Respondent that he was
employed as Lineman with Petitioner and worked for more than 240 days during
every year — Terminated without service of Notice as required — It is alleged that
Workers junior to him retained and still in service — Industrial Dispute raised —
Labour Court passed Award directing Reinstatement with continuity in service and
Back Wages — On challenge, held, dispute raised in 2011 before Conciliation
Officer relating to Termination of service in 1990 after 21 years — It is trite law that
what time period would constitute disentitling delay would depend upon facts and
circumstances of each case as held in Chief Engineer, Ranjeet Sagar Dam v. Sham
Lal, 2006 (9) SCC 124 — Labour Court, before whom plea of grossly belated claim
had been raised, did not advert to aspect which was required to be addressed by
Labour Court — Had it been only issue about non-examination of this plea, it would
have merited remand of matter to Labour Court — Workman earlier moved before
Conciliation Officer in 1999 and also filed Writ Petition and Special Appeal — He
suppressed all these facts — Suppression of facts constitute material, which if there
before State Government or its delegate, who exercised power to make reference, is
strong probability would have swayed subjective satisfaction of Authority other way
— Plea of suppression of fats raised by Employer in their Written Statement —
However, Labour Court not examined said plea — Findings of Labour Court that
similarly circumstanced Workers reinstated in service absolutely without basis in as
much as reinstatement in that case founded on Judicial Order passed by this Court
— It is well settled that Award of Labour Court that is perverse or manifestly illegal
ought to be quashed — Instant case squarely falls in category where Award rendered
perverse ignoring material evidence — There is unignorable plea of stale claim
raised after 21 years with no explanation forthcoming on Worker’s part — Award
apart from being manifestly illegal, liable to be quashed — Writ Petition allowed
with costs — Impugned Award quashed. Executive Engineer, Electricity Distribution
Division v. Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir,
J.) 2021 (1) LLN 37
— Section 4-K — Reference — Scope of — Industrial Disputes Act, 1947 (14 of
1947), Sections 2(oo), 2(a)(ii), 25-N & 25-O — Working Journalists and other
Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act,
1955 (45 of 1955), Sections 2(dd), 2(f) & 3 — Appropriate Government to refer
Industrial Dispute — Retrenchment — Conditions precedent to retrenchment —
Procedure for closing down undertaking — Sham Closure —‘Non-journalist
Newspaper Employee’ — ‘Working Journalist’ — Applicability of Central ID Act
to working journalists — Respondent-2 joined Petitioner as Apprentice in trade of
Plate-making — Terminated due to installation of CTP Machine — However,
Process Department not closed due to installation of CTP — It is alleged that some
new persons also recruited and some others retained — Respondent’s services
terminated without Notice in violation of provisions of Act —Industrial Dispute
raised — Labour Court held Termination illegal and ordered Reinstatement with
continuity of service and 50% Back Wages — On challenge, held, Section 3 of
Working Journalists Act extends application of Central ID Act, to Working
Journalists subject to modifications envisages under sub-section (2) — Newspaper
establishment would clearly fall under sub-clause (ii) of Clause (a) of Section 2,
making Appropriate Government relating to Newspaper establishment a State
Government under Central Act — Reference of dispute under Section 4-K of State
Act, held to be a valid reference — A Plate Maker, a mere technical hand and a
Workman — As per recommendations of Manisana Wage Board, Plate Maker, a
Workman, not a Working Journalist within meaning of Working Journalists Act —
Labour Court reasonably concluded that there was no closure of part of Unit or
Undertaking — Process Department continue to function, may be with changed
technology — Change over to CTP Machines not led to dispensation of services of
Plate Makers like Respondent-Workman — Labour Court rightly concluded that
closure pleaded by Petitioner is a ‘sham’ to get rid of Respondent — Retrenchment
held to be in breach of Section 25-N — Workman, superannuated during pendency
of Writ Petition, cannot be reinstated — His salary revised according to
recommendations of Wage Board — Detailed Calculation furnished by Workman
showing his entitlement worked at 50% of his Wages in terms of Award at
`14,70,137 — Since Workman did not render any service during entire period till
Superannuation, ends of justice would meet by modifying Award to payment of
`6.00 Lakhs towards full and final satisfaction of claim to be paid within two
months failing which Interest at 6% to be paid — Workman entitled to Cost of
`20,000 — Writ Petition partly allowed. Jagran Prakashan Limited v. Presiding
Officer, Labour Court (All.) (Jahangir Jamshed Munir, J.) 2021 (1) LLN 62
WORKING JOURNALISTS AND OTHER NEWSPAPER
EMPLOYEES (CONDITIONS OF SERVICE) AND
MISCELLANEOUS PROVISIONS ACT, 1955 (45 OF 1955)
— Sections 2(dd), 2(f) & 3 — Uttar Pradesh Industrial Disputes Act, 1947 (28 of
1947), Section 4-K — Reference — Scope of — Industrial Disputes Act, 1947 (14
of 1947), Sections 2(oo), 2(a)(ii), 25-N & 25-O — Appropriate Government to refer
Industrial Dispute — Retrenchment — Conditions precedent to retrenchment —
Procedure for closing down undertaking — Sham Closure —‘Non-journalist
Newspaper Employee’ — ‘Working Journalist’ — Applicability of Central ID Act
to working journalists — Respondent-2 joined Petitioner as Apprentice in trade of
Plate-making — Terminated due to installation of CTP Machine — However,
Process Department not closed due to installation of CTP — It is alleged that some
new persons also recruited and some others retained — Respondent’s services
terminated without Notice in violation of provisions of Act —Industrial Dispute
raised — Labour Court held Termination illegal and ordered Reinstatement with
continuity of service and 50% Back Wages — On challenge, held, Section 3 of
Working Journalists Act extends application of Central ID Act, to Working
Journalists subject to modifications envisages under sub-section (2) — Newspaper
establishment would clearly fall under sub-clause (ii) of Clause (a) of Section 2,
making Appropriate Government relating to Newspaper establishment a State
Government under Central Act — Reference of dispute under Section 4-K of State
Act, held to be a valid reference — A Plate Maker, a mere technical hand and a
Workman — As per recommendations of Manisana Wage Board, Plate Maker, a
Workman, not a Working Journalist within meaning of Working Journalists Act —
Labour Court reasonably concluded that there was no closure of part of Unit or
Undertaking — Process Department continue to function, may be with changed
technology — Change over to CTP Machines not led to dispensation of services of
Plate Makers like Respondent-Workman — Labour Court rightly concluded that
closure pleaded by Petitioner is a ‘sham’ to get rid of Respondent — Retrenchment
held to be in breach of Section 25-N — Workman, superannuated during pendency
of Writ Petition, cannot be reinstated — His salary revised according to
recommendations of Wage Board — Detailed Calculation furnished by Workman
showing his entitlement worked at 50% of his Wages in terms of Award at
`14,70,137 — Since Workman did not render any service during entire period till
Superannuation, ends of justice would meet by modifying Award to payment of
`6.00 Lakhs towards full and final satisfaction of claim to be paid within two
months failing which Interest at 6% to be paid — Workman entitled to Cost of
`20,000 — Writ Petition partly allowed. Jagran Prakashan Limited v. Presiding
Officer, Labour Court (All.) (Jahangir Jamshed Munir, J.) 2021 (1) LLN 62
January 2021 John D’Souza v. Karnataka State Road Transport Corporation 1
(SC) (Surya Kant, J.)

LABOUR LAW NOTES

2021 (1) LLN Part 1

2021 (1) LLN 1 (SC)

IN THE SUPREME COURT OF INDIA
Sanjay Kishan Kaul & Surya Kant, JJ.
C.A. No.8042 of 2019 (S.L.P.(C) No.6371 of 2019)
16.10.2019
John D’Souza …..Appellant
Vs.
Karnataka State Road Transport Corporation …..Respondent
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Section 33(2)(b) —
Inquiry — Scope of — Labour Court under Section 33(2)(b) empowered
to conduct Inquiry under two phases — Firstly to determine whether
prima facie case made out for discharge/dismissal from service on basis
of Domestic Enquiry and whether said Order suffers from violation of
Principle of Natural Justice or amounts to Unfair Labour Practice — If
answer to both questions is in negative, approval must be given —
However, in case if Domestic Enquiry suffers from any legal ailment,
Labour Court empowered to permit parties to adduce evidence —
Evidence permitted to be led in only when Domestic Enquiry suffers
from any defect and not otherwise — Labour Court cannot determine
proportionality of punishment under Section 33(2)(b) — In instant case,
reliance upon evidence produced by parties without holding that
Domestic Enquiry was defective, erroneous — Labour Court directed to
re-visit matter in light of principle enunciated — However, considering
ongoing Mediation between parties, proceedings before Labour Court
stayed and parties and Mediator requested to settle dispute amicably —
If Mediation successful, same to be reported to Apex Court, however, if
unsuccessful parties to appear before Labour Court, wherein matter to
be decided on merits. (Paras 34, 35, 39 & 40)

Labour Law Notes / January-2021

2 LABOUR LAW NOTES 2021 (1) LLN

INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Sections 10, 11(3),

11-A & 33(2)(b) — Power under Section 10 and Section 33 — Difference
between — Scope of Inquiry — An Industrial Dispute stemming out of
an Order of Discharge or Dismissal referable to Labour Court in
exercise of jurisdiction under Section 10(1)(c) — Section 33(2)(b)
inserted for a purpose other than Section 10(1)(c) — Object of Section
33 is to prevent adverse alteration in conditions of service of Workmen,
when Conciliation proceedings are pending — Employer, however,
under Section 33(2) permitted to take punitive action against Workman
for proved misconduct provided same is not connected with pending
dispute — Summary enquiry conducted under Section 33(2)(b) to
ensure that punitive action against Workman is not tainted with mala
fides — Said enquiry and proceedings not akin to adjudication of
dispute under Section 10 — Labour Court in an Inquiry under Section
33(2)(b) can permit parties to lead evidence with respect to legality and
propriety of Domestic Enquiry. (Paras 22 – 25)
CASES REFERRED
Automobile Products of India Ltd. v. Rukmaji Bala, 1955 (1) SCR 1241 ...............................28
Cholan Roadways Ltd. v. G. Thirugnanasambandam, 2005 (1) LLN 633 (SC) ..... 32, 33, 35, 37
Lalla Ram v. D.C.M. Works Ltd., 1978 (3) SCC 1.......................................... 30, 31, 33, 35, 39
Martin Burn Ltd. v. R.N. Bangerjee, 1958 SCR 514..........................................................26, 32
Mysore Steel Works Pvt. Ltd. v. Jitendra Chandra Kar, 1971 (1) LLJ 543 ........... 29, 30, 31, 33
Punjab National Bank Ltd. v. Workmen, 1960 (1) SCR 806 ..................... 27, 28, 31, 33, 35, 36
R.S. Hegde, learned Advocate for Respondent/Corporation.
Finding — C.A. partly allowed.
JUDGMENT
Surya Kant, J.
1. Leave granted.
2. The instant Appeal, by special leave, is directed against the Judgment
and Order, dated 30th November 2018 passed by the Division Bench of High
Court of Karnataka at Bangalore whereby the Intra-Court Appeal preferred
by the Karnataka State Road Transport Corporation (in short, ‘the
Corporation’) against the Order, dated 20th September 2017 of the learned
Single Judge has been allowed and after setting aside the Order, dated 28th
October 2016 of the First Additional Labour Court, Bangalore, the said
Court has been directed to decide afresh application of the Corporation under
Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short, ‘the Act’) in
accordance with the observations made by the Division Bench of the High
Court in an earlier Order, dated 14th July 2016 passed in W.A. No.30 of
2015.
3. The question which falls for consideration revolves around the scope
and ambit of the enquiry to be held by a Labour Court or Industrial Tribunal

Labour Law Notes / January-2021

January 2021 John D’Souza v. Karnataka State Road Transport Corporation 3
(SC) (Surya Kant, J.)
while granting or refusing approval for the discharge or dismissal of a
Workman under Section 33(2)(b) of the Act.
4. The facts giving rise to the present controversy may be briefly noted.
The Appellant-Workman joined the Corporation as a Bus conductor on 28th
November 1984. He had been a Union activist and also the General
Secretary of the KSRTC & BMTC United Employees-Union. The Appellant
reportedly remained absent from duty since 18th August 2005 onwards
without prior permission of his superiors or getting his leave sanctioned. The
Depot Manager reported the Appellant’s absence on 25th August 2005. A
notice was sent to him on 5th September 2005 to resume the duties. The
Appellant statedly absented himself from duty w.e.f. 18th August 2005 to
29th October 2005 for which he was served an article of charges on 23rd
June 2006. He did not submit any reply to the Charge-sheet, hence, the
Disciplinary Authority decided to hold an enquiry. A retired Joint Law
Officer of the Corporation was appointed as the Enquiry Officer. The
enquiry was held on various dates commencing from 5th September 1998 till
its conclusion on 12th August 2010. The Appellant participated in the
enquiry during the time the Management’s Witnesses were examined and
after closure of the evidence of Management he was given an opportunity to
produce his Witnesses and also the documents for which the Enquiry
proceedings were adjourned to 28th January 2010. The Appellant, however,
sought adjournments on 28th January 2010; 18th February 2010; 11th March
2010; 15th April 2010; 13th May 2010; 4th June 2010; 15th July 2010; and
12th August 2010, but still failed to produce any evidence. The enquiry was
eventually closed and report was submitted holding that the charges had
been proved. Thereafter a Show Cause Notice, dated 21st August 2010 along
with the enquiry findings was served upon the Appellant to which he
submitted his reply. The Disciplinary Authority was not satisfied with the
explanation furnished by the Appellant, hence, it passed the Order of
Dismissal from service on 11.10.2010.
5. The past service record of the Appellant appears to have weighed in
the mind of the Disciplinary Authority as there were 30 other default charges
of one or the other nature and on two previous occasions also, the Appellant
was dismissed from service though both those orders had been set aside and/
or withdrawn.
6. Since an ‘Industrial Dispute’ in Reference No.243/2006 in which the
Appellant was also a concerned Workman was pending before the Labour
Court-cum-Industrial Tribunal, the Corporation moved an application under
Section 33(2)(b) of the Act seeking permission of the Labour Court to
effectuate the Order of Dismissal. It further appears that the Appellant
meanwhile attained the age of superannuation.
7. The Labour Court formulated the following four issues for its
consideration:

Labour Law Notes / January-2021

4 LABOUR LAW NOTES 2021 (1) LLN

“1. Whether Domestic Enquiry held against first party is fair and proper ?
2. Whether the Enquiry Officer is justified in holding that the charges are
proved ?
3. Whether the Disciplinary Authority is justified in dismissing the first
party ?
4. To what award or order the parties entitled.”
8. The Labour Court after perusing the evidence adduced on Issue No.1
passed an Order, dated 16th March 2012 answering Issue No.1 in
‘affirmative’ and held that the Domestic Enquiry was conducted in a fair and
proper manner. The Appellant unsuccessfully challenged that order before
the High Court. He thereafter filed S.L.P.(C) Nos.34485- 34486/2013 in this
Court, but the matter was rendered infructuous as meanwhile the Labour
Court vide its Final Order/Award, dated 6th November 2013 decided Issue
Nos.2, 3 & 4 in favour of the Appellant. The application of the Management
under Section 33(2)(b) was consequently rejected. The Corporation
challenged the Final Order of the Labour Court, but a learned Single Judge
of the High Court dismissed its Writ Petition on 21st November 2014. Still
aggrieved, the Corporation filed Writ Appeal No.30 of 2015, which was
allowed by a Division Bench of the High Court vide Order, dated 14th July
2016 laying down that the Labour Court while exercising jurisdiction under
Section 33(2)(b) could not have permitted the parties to adduce evidence as
the scope of enquiry thereunder is very limited. The High Court, thus,
viewed:
“A prima facie case does not mean a case proved to the hilt, but a case which,
can be said to be established, if the evidence, which is led in support of the same,
were believed. While determining whether a prima facie case has been made out,
the relevant consideraiton is, whether on the evidence led, it was possible to
arrive at the conclusion in question, and not whether that was the only
conclusion which could be arrived at on that evidence. It may be that the
Tribunal considering this question may itself, could arrive at a different
conclusion. It has, however, not to substitute its own Judgment for the Judgment
in question. It has, only, got to consider whether the view taken is a possible
view on the evidence on the record.”
9. The Division Bench further observed that since the Labour Court had
exceeded its jurisdiction the Award passed by it as well as the order of the
learned Single Judge were liable to be set aside. The matter was, thus,
remitted back to the Labour Court for reconsideration.
10. The First Additional Labour Court at Bangalore again ventured into
the controversy and reiterating its view, it passed the Award, dated 28th
October 2016 turning down the Corporation’s application under Section
33(2)(b) on the ground that though Issue No.1 was decided against the
Workman holding that the enquiry held against him was just and proper, but

Labour Law Notes / January-2021

January 2021 John D’Souza v. Karnataka State Road Transport Corporation 5
(SC) (Surya Kant, J.)
on consideration of the plethora of documents Exts.R1 to R104 produced by
the Appellant it could be safely inferred that he had, in fact, applied for leave
vide application Ext.A3 and had also reported for duty on 29th August 2005
but he was not allowed to join and instead the Departmental Enquiry was
initiated. The Labour Court, thus, held that the Appellant cannot be treated
as an absentee from 29th August 2005 onwards. The absence period was not
from 18th August 2005 to 29th October 2005 it could rather at best be from
18th August 2005 till 29th August 2005. The Labour Court also relied upon
certain decisions to hold that it was within its jurisdiction under Section
33(2)(b) of the Act to find out that “there was victimisation or Unfair Labour
Practices” adopted by the Management.
11. The aggrieved Corporation assailed the order of the Labour Court
before a learned Single Judge who vide Judgment, dated 20.9.2017 took
more or less the same view and declined to interfere with the order. The
Corporation, therefore, once again questioned the order of the learned Single
Judge in Writ Appeal No.6609 of 2017, which has been allowed by the
Division Bench of the High Court vide impugned Judgment, dated 30th
November 2018, essentially on the premise that the jurisdiction under
Section 33(2)(b) could not be stretched and expanded to permit the parties to
lead their evidence which was never produced in the Domestic Enquiry.
Such new evidence could not be relied upon to hold that the charges were
not proved or that the punishment of dismissal was disproportionate. The
Division Bench, thus, held:
“...From close scrutiny of the Order passed by the Labour Court particularly
Paragraphs 25 to 45, it is evident that the findings by the Labour Court with
regard to perversity of the findings recorded by the Enquiry Officer and
victimization is based on additional material on record, which did not form a part
of the Enquiry proceeding. The Labour Court, while passing the impugned Order
has not only traveled beyond the order of remand, but has acted like an Appellate
Authority.
The learned Single Judge has failed to appreciate that the Respondent only cross-
examined the Witnesses of Appellant in the Departmental Enquiry and did not
adduce any evidence. The Respondent for the first time before the Labour Court
produced the documents viz., Exs.R1 to R104, which, have been considered by
the Labour Court. The learned Single Judge has also failed to appreciate that the
Labour Court was required to decide the application under Section 33(2)(b) of
the Act in the light of observations made by the Division Bench of this Court in
Order, dated 14.7.2016 passed in W.A. No.30/2015, which had attained finality
and was binding on the Labour Court. The learned Single Judge has also not
appreciated that the finding with regard to victimization of Respondent is based
on additional material, which was not part of the enquiry conducted against the
Respondent.”
12. The Division Bench further held that the Labour Court was duty-
bound to decide application under Section 33(2)(b) within the restricted

Labour Law Notes / January-2021

6 LABOUR LAW NOTES 2021 (1) LLN

parameters evolved by a Coordinating Bench in Writ Appeal No.30 of 2015

decided on 14th July 2016 in the 2nd round of litigation.
13. We have heard the Appellant in person and Shri R.S. Hegde, learned
Advocate for the Corporation. The Orders/Judgments passed by different
forums in multiple rounds have also been compendiously perused.
14. Before determining the width and length of the jurisdiction
exercisable by a Labour Court or Tribunal under Section 33(2)(b), it is
beneficial to discuss the Legislative Scheme of the Act and some of its
relevant provisions having bearing on the issue to be resolved.
15. The 1947 Act, was enacted to remove the defects experienced in the
working of Trade Disputes Act, 1929 and to provide, inter alia,—
(a) Statutory mechanism for the settlement of Industrial Dispute which is
conclusive and binding on the parties to the dispute;
(b) to check the industrial unrest;
(c) for creation of two new Institutions of Works Committees and
Industrial Tribunal;
(d) to provide an explicit procedure for reference of an Industrial Dispute
by the appropriate Government and enforcement of the Award, which
may be passed;
(e) to re-orient the administration of the conciliation machinery provided
under the old Act; and
(f) also prohibition on strikes and lock-outs during the pendency of
conciliation and Adjudication proceedings, etc., etc. The Act, therefore,
unambiguously aims at harmonising the Management-Workmen
relationship and to prevent labour-unrest or industrial peace-both being
detrimental to the industrial growth of the nation.
16. Chapter-III of the Act relates to “Reference of Disputes to Boards,
Courts or Tribunals.” Section 10 thereof provides that where the appropriate
Government is of the opinion that an Industrial Dispute exists or is
apprehended, it may refer the same either to a Board for promoting a
settlement or to a Court for enquiry or it may refer such dispute, if it relates
to any matter specified in the Second Schedule, to a Labour Court for
adjudication or if the said dispute relates to any matter specified in the
Second or Third Schedule, to a Tribunal for adjudication. Section 10(1) of
the Act reads as follows:
“10. Reference of disputes to Boards, Courts or Tribunals.— (1) [Where the
appropriate Government is of opinion that any Industrial Dispute exists or is
apprehended, it may at any time], by order in writing,—

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January 2021 John D’Souza v. Karnataka State Road Transport Corporation 7
(SC) (Surya Kant, J.)
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute,
to a Court for enquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant
to, the dispute, if it relates to any matter specified in the Second Schedule, to a
Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant
to, the dispute, whether it relates to any matter specified in the Second
Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third
Schedule and is not likely to affect more than one hundred Workmen, the
appropriate Government may, if it so thinks fit, make the reference to a Labour
Court under Clause (c);
Provided further that where the dispute relates to a public utility service and a
notice under Section 22, has been given, the appropriate Government shall,
unless it considers that the notice has been frivolously or vexatiously given or
that it would be inexpedient so to do, make reference under this sub-section
notwithstanding that any other proceedings under this Act in respect of the
dispute may have commenced:
Provided also that where the dispute in relation to which the Central Government
is the appropriate Government, it shall be competent for the Government to refer
the dispute to a Labour Court or an Industrial Tribunal, as the case may be,
constituted by the State Government.” (Emphasis applied)
17. The Second Schedule of the Act lists the matters which fall within the
jurisdiction of Labour Court, including the one at Sr. No.3, “3. Discharge or
dismissal of Workmen including re-instatement of, or grant of relief to,
Workmen wrongfully dismissed.” Similarly, the Third Schedule of the Act
enlists elven types of matters, any of it if constitute an ‘Industrial Dispute’,
the same shall be referred for adjudication to the Industrial Tribunal under
Section 10(1)(d) of the Act.
18. Chapter-IV lays down the procedure, powers and duties of different
authorities for adjudication of the Industrial Disputes under Section 10 of
Chapter-III, referred to above. In this regard, Section 11(3) of the Act vests
the Board, Labour Court and Tribunal the powers of a Civil Court under the
Code of Civil Procedure, 1908 when trying a Suit, for the purpose of
securing evidence. Section 11(3) of the Act says that:
“11. Procedure and power of conciliation officers, Boards, Courts and
Tribunals.—
………
(3) Every Board, Court, [Labour Court, Tribunal and National Tribunal] shall
have the same powers as are vested in a Civil Court under the Code of Civil

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8 LABOUR LAW NOTES 2021 (1) LLN

Procedure, 1908 (5 of 1908), when trying a Suit, in respect of the following

matters, namely:
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects;
(c) issuing commissions for the examination of Witnesses;
(d) in respect of such other matters as may be prescribed, and every inquiry or
investigation by a Board, Court, [Labour Court, Tribunal or National Tribunal]
shall be deemed to be a Judicial proceeding within the meaning of Sections 193
& 228 of the Indian Penal Code (45 of 1860).”
19. Section 11-A of the Act unequivocally empowers the Labour Court,
Tribunals and National Tribunals to set aside the order of discharge or
dismissal of a Workman and direct his reinstatement on such terms and
conditions, as it thinks fit, or to award any lesser punishment in lieu of such
discharge or dismissal, provided that the Labour Court or the Tribunal, as the
case may be, is satisfied that the order of discharge or dismissal, was not
justified.
20. Chapter-VII of the Act comprises ‘Miscellaneous’ provisions and its
Section 33 provides that conditions of service, etc. of the Workmen shall
remain unchanged in certain circumstances during the pendency of
proceedings. Section 33(2) with which we are concerned here reads as
follows:
“33. Conditions of service, etc. to remain unchanged under certain
circumstances during pendency of proceedings.—
(1) …..
(2) During the pendency of any such proceeding in respect of an Industrial
Dispute, the Employer may, in accordance with the standing orders applicable
to a Workman concerned in such dispute [or, where there are no such standing
orders, in accordance with the terms of the Contract, whether express or
implied between him and the Workman]—
(a) alter, in regard to any matter not connected with the dispute, the
conditions of service applicable to that Workman immediately before the
commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, discharge or punish
whether by dismissal or otherwise, that Workman:
Provided that no such Workman shall be discharged or dismissed, unless he has
been paid wages for one month and an application has been made by the
Employer to the authority before which the proceeding is pending for approval
of the action taken by the Employer.”
21. The composite Scheme of the Statute bears out that when an
‘Industrial Dispute’ pertaining to “Discharge or ‘dismissal’ of Workmen
including reinstatement of or ‘grant of relief’ to Workmen wrongfully

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January 2021 John D’Souza v. Karnataka State Road Transport Corporation 9
(SC) (Surya Kant, J.)
dismissed” arises (See Sr. No.3 of Second Schedule), such dispute is
referable for adjudication to the Labour Court in exercise of the jurisdiction
vested in it under Section 10(1)(c) of the Act. The Labour Court shall have
the powers of Civil Court to secure evidence for deciding such dispute. Most
importantly, the doctrine of proportionality is statutorily embedded in
Section 11-A of the Act, which further empowers the Labour Court, subject
to its satisfaction, to set aside the order of discharge or dismissal and
reinstate a Workman on such terms and conditions as it thinks fit or to award
a lesser punishment in lieu thereof. All such awards or orders are enforceable
under the Act.
22. The Legislature has, thus, provided a self-contained mechanism
through Section 10 read with Sections 11(3) & 11-A of the Act, for
adjudication of an ‘Industrial Dispute’ stemming out of an order of discharge
or dismissal of a Workman. Having done so, it can be safely inferred that
neither the Legislature intended nor was there any legal necessity to set-up a
parallel remedy under the same Statute for adjudication of the same
‘Industrial Dispute’ by the same Forum of Labour Court or Tribunal via
Section 33(2)(b) of the Act. To say it differently, Section 33(2)(b) has been
inserted for a purpose other than that for which Section 10(1)(c) & (d) have
been enacted. Section 33(2)(b), thus, is neither meant for nor does it
engender an overlapping procedure to adjudicate the legality, propriety,
justifiability or otherwise sustainability of a punitive action taken against a
Workman.
23. Having held so, it should not take long to trace out the legislative
object behind incorporation of Section 33, including sub-section (2) thereof.
The caption of Section 33 itself sufficiently hints out that the primary object
behind this provision is to prevent adverse alteration in the conditions of
service of a Workman when ‘conciliation’ or any other proceedings in
respect of an ‘Industrial Dispute’ to which such Workman is also concerned,
are pending before a Conciliation Officer, Board, Arbitrator, Labour Court
or Tribunal. The Legislature, through Section 33(1)(a) & (b) has
purposefully prevented the discharge, dismissal or any other punitive action
against the Workman concerned during pendency of proceedings before the
Arbitrator, Labour Court or a Tribunal, even on the basis of proven
misconduct, save with the express permission or approval of the Authority
before which the proceedings is pending. Sub-section (2) of Section 33
draws its colour from sub-section (1) and has to be read in conjunction
thereto. Sub-section (2), in fact, dilutes the rigours of sub-section (1) to the
extent that it enables an Employer to discharge, dismiss or otherwise punish
a Workman for a proved misconduct not connected with the pending dispute;
in accordance with Standing Orders applicable to the Workman or in
absence thereof, as per the terms of Contract; provided that such Workman
has been paid one month wages while passing such order and before moving
application before the Authority concerned ‘for approval of the action’. In

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10 LABOUR LAW NOTES 2021 (1) LLN

other words, the Authority concerned (Board, Labour Court or Tribunal,

etc.) has to satisfy itself while considering the Employer’s application that
the ‘misconduct’ on the basis of which punitive action has been taken is not
the matter sub-judice before it and that the action has been taken in
accordance with the Standing Orders in force or as per terms of the Contract.
The laudable object behind such preventive measures is to ensure that when
some proceedings emanating from the subjects enlisted in Second or Third
Schedule of the Act are pending adjudication, the Employer should not act
with vengeance in a manner which may trigger the situation and lead to
further industrial unrest.
24. Section 33(2)(b) of the Act, thus, in the very nature of things
contemplates an enquiry by way of summary proceedings as to whether a
proper Domestic Enquiry has been held to prove the misconduct so
attributed to the Workmen and whether he has been afforded reasonable
opportunity to defend himself in consonance with the Principles of Natural
Justice. As a natural corollary thereto, the Labour Court or the Forum
concerned will lift the veil to find out that there is no hidden motive to
punish the Workman or an abortive attempt to punish him for a non-existent
misconduct.
25. The Labour Court/Tribunal, nevertheless, while holding enquiry
under Section 33(2)(b), would remember that such like summary
proceedings are not akin and at par with its jurisdiction to adjudicate an
‘Industrial Dispute’ under Section 10(1)(c) & (d) of the Act, nor the former
provision clothe it with the power to peep into the quantum of punishment
for which it has to revert back to Section 11-A of the Act. Where the Labour
Court/Tribunal, thus, do not find the Domestic Enquiry defective and the
principles of fair and just play have been adhered to, they will accord the
necessary approval to the action taken by the Employer, albeit without
prejudice to the right of the Workman to raise an ‘Industrial Dispute’
referrable for adjudication under Section 10(1)(c) or (d), as the case may be.
It needs pertinent mention that an order of approval granted under Section
33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) &
(d) which shall be decided independently while weighing the material
adduced by the parties before the Labour Court/Tribunal.
26. The scope of enquiry vested in a Labour Court or Tribunal under
Section 33(2)(b) has been the subject matter of a catena of decisions by this
Court. In Martin Burn Ltd. v. R.N. Bangerjee, 1958 SCR 514, a Three-
Judge Bench of this Court considered the scope of enquiry under Section 22
of the Industrial Disputes (Appellate Tribunal) Act, 1950 whereunder also
permission to discharge a Workman was required to be obtained in the
manner, which was somewhat similar to Section 33(2)(b) of the 1947 Act.
This Court, thus, held:

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January 2021 John D’Souza v. Karnataka State Road Transport Corporation 11
(SC) (Surya Kant, J.)
“27. The Labour Appellate Tribunal had to determine on these materials whether
a prima facie case had been made out by the Appellant for the termination of the
Respondent’s service. A prima facie case does not mean a case proved to the hilt
but a case which can be said to be established if the evidence which is led in
support of the same were believed. While determining whether a prima facie
case had been made out the relevant consideration is whether on the evidence led
it was possible to arrive at the conclusion in question and not whether that was
the only conclusion which could be arrived at on that evidence. It may be that the
Tribunal considering this question may itself have arrived at a different
conclusion. It has, however, not to substitute its own Judgment for the Judgment
in question. It has only got to consider whether the view taken is a possible view
on the evidence on the record.” (Emphasis by us)
27. A Three-Judge Bench of this Court in Punjab National Bank Ltd. v.
Workmen, 1960 (1) SCR 806, considered and interpreted the scope of
Section 33 to lay down that the jurisdiction of the Tribunal in dealing with
such applications is limited. It was held that:
“24. Where an application is made by the Employer for the requisite permission
under Section 33 the jurisdiction of the Tribunal in dealing with such an
application is limited. It has to consider whether a prima facie case has been
made out by the Employer for the dismissal of the Employee in question. If the
Employer has held a proper enquiry into the alleged misconduct of the
Employee, and if it does not appear that the proposed dismissal of the Employee
amounts to victimisation or an Unfair Labour Practice, the Tribunal has to limit
its enquiry only to the question as to whether a prima facie case has been made
out or not. In these proceedings it is not open to the Tribunal to consider whether
the order proposed to be passed by the Employer is proper or adequate or
whether it errs on the side of excessive severity; nor can the Tribunal grant
permission, subject to certain conditions, which it may deem to be fair. It has
merely to consider the prima facie aspect of the matter and either grant the
permission or refuse it according as it holds that a prima facie case is or is not
made out by the Employer.
25. But it is significant that even if the requisite permission is granted to the
Employer under Section 33 that would not be the end of the matter. It is not as if
the permission granted under Section 33 validates the Order of Dismissal. It
merely removes the ban; and so the validity of the Order of Dismissal still can be,
and often is, challenged by the union by raising an Industrial Dispute in that behalf.
The effect of compliance with the provisions of Section 33 is thus, substantially
different from the effect of compliance with Section 240 of the Government of
India Act, 1935, or Article 311(2) of the Constitution. In the latter classes of cases,
an Order of Dismissal passed after duly complying with the relevant statutory
provisions is final and its validity or propriety is no longer open to dispute; but in
the case of Section 33 the removal of the ban merely enables the Employer to make
an Order of Dismissal and thus avoid incurring the penalty imposed by Section
31(1). But if an Industrial Dispute is raised on such a dismissal, the Order of
Dismissal passed even with the requiste permission obtained under Section 33 has
to face the scrutiny of the Tribunal.” [Emphasis applied]

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12 LABOUR LAW NOTES 2021 (1) LLN

28. In Punjab National Bank (supra), this Court relied upon Automobile
Products of India Ltd. v. Rukmaji Bala, 1955 (1) SCR 1241, and further
opined that:
“In Automobile Products of India Ltd. v. Rukmaji Bala, this Court was dealing
with a similar problem posed by the provisions of Section 22 of Act 48 of 1950,
and Section 33 of the Act. Dealing with the effect of these sections this Court
held that the object of Section 33, was to protect the Workmen against the
victimisation by the Employer and to ensure the termination of the proceedings
in connection with the Industrial Disputes in a peaceful atmosphere. That being
so, all that the Tribunal, exercising its jurisdiction under Section 33, is required
to do is to grant or withhold the permission, that is to say, either to lift or to
maintain the ban. This section does not confer any power on the Tribunal to
adjudicate upon any other dispute or to impose conditions as a prerequisite for
granting the permission asked for by the Employer. The same view has been
expressed in Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup.”
29. Another Three-Judge Bench of this Court in Mysore Steel Works Pvt.
Ltd. v. Jitendra Chandra Kar and others, 1971 (1) LLJ 543, held an in-
depth scrutiny in the scope of jurisdiction vested in an Industrial Tribunal
under Section 33(2)(b) of the Act and ruled as follows:
“10. The question as to the scope of the power of an Industrial Tribunal in an
enquiry under Section 33(2) of the Industrial Disputes Act has by now been
considered by this Court in a number of decisions and is no longer in dispute. If
the Tribunal comes to the conclusion that the Domestic Enquiry was not
defective, that is, it was not in violation of the Principles of Natural Justice, it has
only to see if there was a prima facie case for dismissal, and whether the
Employer had come to a bona fide conclusion that the Employee was guilty of
misconduct. In other words, there was no Unfair Labour Practice and no
victimisation. It will then grant its approval. If the Tribunal, on the other hand,
finds that the enquiry is defective for any reason, it would have to consider for
itself on the evidence adduced before it whether the dismissal was justified. If it
comes to the conclusion on its own appraisal of evidence adduced before it that
the dismissal was justified it would give its approval to the Order of Dismissal
made by the Employer in a Domestic Enquiry. (See P.H. Kalyani v. Air France,
1964 (2) SCR 104 at 112) where, therefore the Domestic Enquiry is conducted in
violation of the Principles of Natural Justice evidence must be adduced before
the Tribunal by the Employer to obtain its approval. Such evidence must be
adduced in the manner evidence is normally adduced before the Tribunal, that is,
Witnesses must be examined and not by merely tendering the evidence laid
before the Domestic Enquiry, unless the parties agree and the Tribunal given its
assent to such a procedure. (See K.N. Barmab v. Management of Badla Beta Tea
Estate, C.A. No.1017 of 1968, dated 9th March 1967). It is clear, therefore, that
the jurisdiction of a Tribunal under Section 33(2) is of a limited character. Where
the Domestic Enquiry is not defective by reason of violation of Principles of
Natural Justice or its findings being perverse or by reason of any Unfair Labour
Practice, the Tribunal has only to be satisfied that there is a prima facie case for
dismissal. The Tribunal in such cases does not sit as an Appellate Court and
come to its own finding of fact.” [Emphasis is ours]

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January 2021 John D’Souza v. Karnataka State Road Transport Corporation 13
(SC) (Surya Kant, J.)
30. The view taken in Mysore Steel Works Pvt. Ltd. (supra) was
reiterated in Lalla Ram v. D.C.M. Works Ltd., 1978 (3) SCC 1, where this
Court analysed Section 33(2)(b) of the Act and held as follows:
“12. The position that emerges from the above quoted decisions of this Court
may be stated thus: In proceedings under Section 33(2)(b) of the Act, the
jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether
a proper Domestic Enquiry in accordance with the relevant rules/Standing
Orders and Principles of Natural Justice has been held; (ii) whether a prima
facie case for dismissal based on legal evidence adduced before the domestic
Tribunal is made out; (iii) whether the Employer had come to a bona fide
conclusion that the Employee was guilty and the dismissal did not amount to
Unfair Labour Practice and was not intended to victimise the Employee regard
being had to the position settled by the decisions of this Court in Bengal Bhatdee
Coal Co. v. Ram Prabesh Singh, AIR 1964 SC 486 : 1964 (1) SCR 709 : 1963
(1) LLJ 291 : 24 FJR 406; Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar,
1961 (1) LLJ 511 : 1960-61 (19) FJR 15; Hind Construction & Engineering Co.
Ltd. v. Their Workmen, AIR 1965 SC 917 : 1965 (2) SCR 85 : 1965 (1) LLJ 462
: 27 FJR 232; Workmen of Messrs Firestone Tyre & Rubber Company of India
(P) Ltd. v. Management, 1973 (1) SCC 813 : 1973 SCC (L&S) 341 : AIR 1973
SC 1227 : 1973 (3) SCR 587; and Eastern Electric & Trading Co. v. Baldev Lal,
1975 (4) SCC 684 : 1975 SCC (L&S) 382 : 1975 Lab IC 1435, that though
generally speaking the award of punishment for misconduct under the Standing
Orders is a matter for the management to decide and the Tribunal is not required
to consider the propriety or adequacy of the punishment or whether it is
excessive or too severe yet an inference of mala fides may in certain cases be
drawn from the imposition of unduly harsh, severe, unconscionable or
shockingly disproportionate punishment; (iv) whether the Employer has paid or
offered to pay wages for one month to the Employee and (v) whether the
Employer has simultaneously or within such reasonably short time as to form
part of the same transaction applied to the authority before which the main
Industrial Dispute is pending for approval of the action taken by him. If these
conditions are satisfied, the Industrial Tribunal would grant the approval which
would relate back to the date from which the Employer had ordered the
dismissal. If however, the Domestic Enquiry suffers from any defect or infirmity,
the labour authority will have to find out on its own assessment of the evidence
adduced before it whether there was justification for dismissal and if it so finds it
will grant approval of the Order of Dismissal which would also relate back to
the date when the order was passed provided the Employer had paid or offered
to pay wages for one month to the Employee and the Employer had within the
time indicated above applied to the authority before which the main Industrial
Dispute is pending for approval of the action taken by him.” [Emphasis supplied]
31. This Court in the above cited decisions has, in no uncertain terms,
divided the scope of enquiry by the Labour Court/Tribunal while exercising
jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour
Court/Tribunal will consider as to whether or not a prima facie case for
discharge or dismissal is made out on the basis of the Domestic Enquiry if
such enquiry does not suffer from any defect, namely, it has not been held in
violation of Principles of Natural Justice and the conclusion arrived at by the

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14 LABOUR LAW NOTES 2021 (1) LLN

Employer is bona fide or that there was no Unfair Labour Practice or

victimisation of the Workman. This entire exercise has to be undertaken by
the Labour Court/Tribunal on examination of the record of enquiry and
nothing more. In the event where no defect is detected, the approval must
follow. The second stage comes when the Labour Court/Tribunal finds that
the Domestic Enquiry suffers from one or the other legal ailment. In that
case, the Labour Court/Tribunal shall permit the parties to adduce their
respective evidence and on appraisal thereof the Labour Court/Tribunal shall
conclude its enquiry whether the discharge or any other punishment
including dismissal was justified. That is the precise ratio decendi of the
decisions of this Court in (i) Punjab National Bank, (ii) Mysore Steel
Works Pvt. Ltd. and (iii) Lalla Ram’s cases (supra).
32. A Division Bench of this Court in Cholan Roadways Ltd. v. G.
Thirugnanasambandam, 2005 (1) LLN 633 (SC) : 2005 (3) SCC 241, also
went into the issue of jurisdiction exercisable under Section 33(2)(b) of the
Act and relying upon the Martin Burn Ltd. (supra), it has opined as follows:
“18. The jurisdiction of the Tribunal while considering an application for grant
of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R.N.
Banerjee, AIR 1958 SC 79 : 1958 SCR 514. While exercising jurisdiction under
Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to
whether a prima facie case has been made out as regards the validity or
otherwise of the Domestic Enquiry held against the delinquent, keeping in view
the fact that if the permission or approval is granted, the order of discharge or
dismissal, which may be passed against the delinquent Employee would be liable
to be challenged in an appropriate proceeding before the Industrial Tribunal in
terms of the provision of the Industrial Disputes Act.” [Emphasis applied]
The Court then observed that:
“19. It is further trite that the standard of proof required in a Domestic Enquiry
vis-a-vis a Criminal trial is absolutely different. Whereas in the former
“preponderance of probability” would suffice; in the latter, “proof beyond all
reasonable doubt” is imperative.
20. The Tribunal while exercising its jurisdiction under Section 33(2)(b) of the
Industrial Disputes Act was required to bear in mind the aforementioned legal
principles. Furthermore, in a case of this nature the probative value of the
evidence showing the extensive damages caused to the entire left side of the Bus;
the fact that the Bus first hit the branches of a tamarind tree and then stopped at a
distance of 81 ft therefrom even after colliding with another bus coming from the
front deserved serious consideration at the hands of the Tribunal. The nature of
impact clearly demonstrates that the vehicle was being driven rashly or
negligently.”
33. The Three-Judge Bench decisions of this Court in Punjab National
Bank and Mysore Steel Works Pvt. Ltd. (supra), as well as the Division
Bench Judgment in Lalla Ram (supra) were unfortunately not cited before
this Court in Cholan Roadways Ltd. There is yet no conflict of opinion as in

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January 2021 John D’Souza v. Karnataka State Road Transport Corporation 15
(SC) (Surya Kant, J.)
Cholan Roadways Ltd. (supra) also this Court reiterated the past consistent
view that while exercising jurisdiction under Section 33(2)(b) of the Act, the
Industrial Tribunal is required to see only whether a prima facie case has
been made out as regard to the requirement of Domestic Enquiry. Cholan
Roadways nonetheless deals with only 1st phase of the jurisdiction
exercisable under Section 33(2)(b) and it falls short to elucidate as to
whether, in the event of a defective Domestic Enquiry, the Labour Court/
Tribunal can also the parties to adduce evidence. The 2nd phase of
Jurisdiction exercisable under Section 33(2)(b) was not debated in Cholan
Roadways (supra) apparently for the reason that on facts this Court was
satisfied that the delinquent Workman was guilty of the misconduct
attributed and proved against him in the Domestic Enquiry. On the other
hand, Mysore Steel Works Pvt. Ltd. and Lalla Ram have gone a step ahead
to hold that the Tribunal can permit the parties to adduce evidence if it finds
that the Domestic Enquiry suffers from any defect or was violative of the
Principles of Natural Justice or was marred by Unfair Labour Practice, it
may then independently examine the evidence led before it to embark upon
the question whether or not the punitive action deserves to be accorded
approval.
34. It, thus, stands out that though the Labour Court or the Tribunal while
exercising their jurisdiction under Section 33(2)(b) are empowered to permit
the parties to lead evidence in respect of the legality and propriety of the
Domestic Enquiry held into the misconduct of a Workman, such evidence
would be taken into consideration by the Labour Court or the Tribunal only
if it is found that the Domestic Enquiry conducted by the Management on
the scale that the standard of proof required therein can be ‘preponderance of
probability’ and not a ‘proof beyond all reasonable doubts’ suffers from
inherent defects or is violative of Principles of Natural Justice. In other
words, the Labour Court or the Tribunal cannot without first examining the
material led in the Domestic Enquiry jump to a conclusion and mechanically
permit the parties to lead evidence as if it is an essential procedural part of
the enquiry to be held under Section 33(2)(b) of the Act.
35. If the awards/orders of the Labour Court or the Judgments passed by
learned Single Judge(s) and the Division Benches of the High Court are
evaluated on these principles, it appears to us that all of them went partly
wrong and their respective orders suffer from one or the other legal
infirmity. While the Labour Court and the learned Single Judge(s) have
erroneously presumed that no enquiry can be held under Section 33(2)(b)
without asking the parties to lead their evidence, the learned Division
Benches of the High Court have proceeded on the premise that in a prima
facie fact finding enquiry under Section 33(2)(b) no evidence can be
adduced or considered by the Labour Court except what is on the record of
Domestic Enquiry. Both the views do not go hand in hand with the law laid
down by this Court in Punjab National Bank, Mysore Steel Works Pvt. Ltd.

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16 LABOUR LAW NOTES 2021 (1) LLN

and Lalla Ram’s cases (supra). The Division Bench of the High Court solely
depended upon Martin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold
that the scope of enquiry under Section 33(2)(b) being limited to see that
prima facie the enquiry is just and proper, the Labour Court is precluded
from asking the parties to lead any other evidence. Such a view is not in
confirmity with the exposition of law in Punjab National Bank, Mysore
Steel Works Pvt. Ltd. and Lalla Ram’s cases, cited above. The Labour Court
did not exceed its jurisdiction in permitting the parties to adduce the
evidence before it though it erred in relying upon the same without holding
that the enquiry was defective or the punitive action was vitiated for want of
bona fides. The finding on issue No. 1 that the Domestic Enquiry was held in
a proper and fair manner also acquires significance here. Still further, the
scope and object of Section 33(2)(b) cannot be expanded to an extent that the
very scheme of adjudication of an ‘Industrial Dispute’ under Sections
10(1)(c) & (d) read with Section 11-A of the Act becomes superfluous.
36. It is for this precise reason that the Three-Judge Bench in Punjab
National Bank (supra), after limiting the scope of enquiry under Section
33(2)(b) of the Act, has categorically held that the Order of Dismissal even if
approved under Section 33(2)(b), would not attain finality and that .... “if an
Industrial Dispute is raised on such a dismissal, the Order of Dismissal
passed even with the requisite permission obtained under Section 33 has to
face the scrutiny of Tribunal.”
37. In Cholan Roadways Ltd. (supra) also, this Court gave opportunity to
the Workman to take recourse to such remedy as was available to under the
laws for questioning the Order of Dismissal.
38. The Labour Court or Tribunal, therefore, while holding enquiry under
Section 33(2)(b) cannot invoke the adjudicatory powers vested in them
under Section 10(i)(c) and (d) of the Act nor can they in the process of
formation of their prima facie view under Section 33(2)(b), dwell upon the
proportionality of punishment, as erroneously done in the instant case, for
such a power can be exercised by the Labour Court or Tribunal only under
Section 11-A of the Act.
39. Consequently, the Labour Court shall in the instant case re-visit the
matter afresh within the limit and scope of Section 33(2)(b), as explained
above and keeping in mind that the exercise in hand is not adjudication of an
‘Industrial Dispute’ under Section 10(1)(c) or (d) read with Section 11-A of
the Act. However, if the Labour Court finds that the domestic inquiry held
against the Appellant is suffering from one of the incurable defects as
illustrated by this Court in Mysore Steel Works Pvt. Ltd. or Lalla Ram’s
cases, then it may look into the evidence adduced by the parties for the
purpose of formation of its prima facie opinion.

Labour Law Notes / January-2021

January 2021 John D’Souza v. Karnataka State Road Transport Corporation 17
(SC) (Surya Kant, J.)
40. This is, however, not the end of the matter. We are not oblivious to
the fact that the Appellant attained the age of superannuation in the year
2010. There might be some substance in the allegation that he used to
indulge in the acts of indiscipline, insubordination or may have absented
himself from duties for a few days, there are, however, no allegations of
financial irregularity or embezzlement of funds. It has come on record that
when the proceedings were pending before the High Court, the parties were
directed to mediate and submit their settlement proposals. The Appellant
also submitted his proposal which is on record, in which he demanded 75%
of Back Wages whereas the Corporation agreed to pay 50% Back Wages to
him. The settlement could not take place due to the difference in demand and
offer to the extent of 25% Back Wages. Though the Appellant seems to be in
no mood to settle the dispute, we have not lost the hope and are sanguine
that better sense will prevail upon both the parties and they will make an
earnest and renewed effort through the Mediation Centre of High Court of
Karnataka at Bangalore for amicable settlement of the dispute. This can only
happen by adopting the give and take approach, especially to avoid
prolonged litigation. The appellant may agree to take less than 75% Back
Wages and the Corporation may incline to offer more than 50% Back
Wages. Mediators will surely make efforts to bridge the gap and see that the
dispute comes to an end. Both the parties, must also bear in mind that the
recourse to ‘mediation’ suggested by us is one of the statutory mode
prescribed for resolving an ‘Industrial Dispute’ under the Act. We, therefore,
direct both the parties to appear before the Mediation Centre of the High
Court of Karnataka at Bangalore on 4th November 2019 at 11.00 a.m. and
let such proceedings be concluded by 3rd December 2019. Till such time,
the stay of proceedings before the Labour Court granted by this Court shall
continue to operate. If the parties are able to resolve their dispute amicably,
the Mediation Centre of the High Court of Karnataka at Bangalore shall send
its report to this Court. Registry is directed to list the matter before the Court
within two weeks from the date of receipt of the mediation report for further
directions, if need be. However, if the mediation fails, the parties are
directed to appear before the Labour Court at Bangalore on 5th December
2019. In that event, the Labour Court shall decide the matter on merits
without taking any lead from what we have suggested for the purpose of
amicable settlement. It is made clear that we have not expressed any views
on merits of the case.
41. In the light of above discussion, the Appeal is allowed in part and the
impugned Judgment, dated 30.11.2018 passed by the Division Bench of the
High Court is modified to the extent mentioned above.
  

Labour Law Notes / January-2021

18 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 18 (SC)

IN THE SUPREME COURT OF INDIA
S. Abdul Nazeer & Hemant Gupta, JJ.
C.A. No.8071 of 2014
14.2.2020
State of Karnataka and others .....Appellants
Vs.
N. Gangaraj .....Respondent
DISCIPLINARY PROCEEDINGS — Scope of Judicial Review —
Respondent was working as Police Inspector at Mysore — On
Complaint, Lokayukta Police laid trap and filed Criminal Complaint —
Special Judge acquitted Respondent after trial — Departmental
Enquiry initiated against Respondent and he was dismissed —
Departmental Appeal filed by Respondent dismissed — OA filed in
Administrative Tribunal which set aside Order of dismissal — On
challenge, High Court found discrepancies in evidence of Witnesses —
On challenge, held, interference with Order of Punishment by Tribunal
as affirmed by High Court suffers from patent error — Powers of
Judicial Review confined to decision making process — In Union of
India v. P. Gunasekaran, 2015 (2) SCC 610, Court held that while
appreciating evidence, High Court cannot act as Appellate Authority in
Disciplinary proceedings and laid down parameters as to when High
Court shall not interfere in Disciplinary proceedings — In instant case,
it is not case of no evidence or that findings are perverse — Findings
interfered with on ground of discrepancies in evidence of Department —
Enquiry Officer appreciated evidence and held Respondent guilty of
misconduct — Disciplinary Authority agreed with findings of Enquiry
Officer and passed Order of Punishment — Once evidence accepted by
Departmental Authority, Tribunal or High Court could not interfere
with findings of facts by reappreciating evidence as if Courts are Courts
of Appeal — Orders of Tribunal and High Court suffers from patent
illegality and unsustainable — Appeal allowed — Orders of Tribunal
and High Court set aside — Order of Punishment imposed restored —
Prevention of Corruption Act, 1988 (49 of 1988), Sections 7, 13(1)(d) &
13(2) — Constitution of India, Articles 226 & 227. (Paras 7 to 14)
CASES REFERRED
Allahabad Bank v. Krishna Narayan Tewari, 2017 (2) LLN 9 (SC).........................................13
B.C. Chaturvedi v. Union of India, 1997 (4) LLN 65 (SC) ........................................................9
Registrar v. Shashikant S. Patil, 2000 (1) LLN 317 (SC) .........................................................10
State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, 2011 (4) SCC 584......................11
State of Andhra Pradesh v. S. Sree Rama Rao, AIR 1963 SC 1723 ...........................................8
Union of India v. P. Gunasekaran, 2015 (2) SCC 610 .............................................................12

Labour Law Notes / January-2021

January 2021 State of Karnataka v. N. Gangaraj 19
(SC) (Hemant Gupta, J.)
V.N. Raghupathy, Advocate for Appellant.
Mallikarjun S. Mylar & E.R. Sumathy, Advocates for Respondent.
Finding — C.A. allowed.
JUDGMENT
Hemant Gupta, J.
1. The State is in Appeal aggrieved against an Order passed by the High
Court of Karnataka on 25th August 2011 whereby the challenge to an Order
passed by the Karnataka Administrative Tribunal1 on 12th March 2009
setting aside the punishment of dismissal from the service imposed upon the
Respondent remained unsuccessful.
2. The Respondent was working as a Police Inspector at Mysore from
31st July 1997 to 31st October 1998. On the Complaint of one Nirmala, the
Lokayukta Police had laid a trap. On the basis of a Criminal Complaint
lodged, Crime No.15/1998 was registered against Respondent in Mysore
Lokayukta Police Station under Sections 7 & 13(1)(d) read with Section
13(2), under the Prevention of Corruption Act, 1998. A Charge-sheet against
the Respondent was filed in the Court of Special Judge, Mysore for the
offences punishable under the Prevention of Corruption Act, 1988. The said
Criminal Trial resulted in the acquittal of the Respondent.
3. In addition to the Criminal trial, the Respondent was also proceeded
against for the misconduct in Departmental proceedings. The Respondent
was served with a Charge-sheet. The Respondent faced Departmental
proceedings on the following two charges:
“1. You, the Accused Police Officer, Sri. N. Gangaraj, while working as Police
Inspector in City Crime Record Bureau of the office of the Commissioner of
Police, Mysore City from 31.7.1997 to 31.10.1998, one Miss. Chandrika resident
of Nandanavana, Ulsoor, Bangalore City, has lodged a complaint dated 8.8.1998
with Sri. Kempaiah, Commissioner of Police, Mysore City, against one Mr.
Mahendra of Indiranagar, Bangalore, stating that he promised to marry her and
taken her in Car No. KA-05-9795 along with his friends and raped her. She has
requested therein to take action against Mr. Mahendra and his friends. The
Commissioner of Police, Mysore City has sent the said Petition to Police
Inspector, City Crime Branch, Mysore for enquiry and to send the report. You
being a responsible Police Officer, shown utter misconduct in managing to
obtain a Xerox copy of the said Petition through illegal means and contacting the
wife of the Driver of above said vehicle demanded illegal gratification of
`40,000 and negotiating the deal for `20,000 with instructions to the party to pay
the amount on 27.8.98 at your residence.
2. Even though the Petition of Miss. Chandrika, lodged with the Commissioner
of Police, Mysore City was not at all concerned to you, you managed to get it’s
copy with ulterior motto through illegal means and contacted Mrs. B.J. Nirmala
wife of Mr. Sampathkumar, Driver of Car No.KA-05-9795 by sending Mr.
Puttaraju CHC 141 and Mr. Shivakumar CPC 22 to Bangalore and also contacted

Labour Law Notes / January-2021

20 LABOUR LAW NOTES 2021 (1) LLN

the above parties over telephone and demanded `40,000 as illegal gratification
for not including the Car in the case. When the parties were not agreed to pay,
you negotiated the amount to `20,000. Being a responsible Police Officer and
knowing fully well that accepting illegal gratification is against to Rule (sic
Sections) 7, 13(1)(d) & 13(2) of P.C. Act, you behaved in a way to bring down
the prestige of the department, showing dereliction of duty, utter misconduct and
an at of unbecoming of a Police Officer as well as a Government Servant.”
4. The Respondent denied the charges. The Deputy Superintendent of
Police, West Circle, Mangalore was appointed as the Inquiry Officer (IO).
The IO returned a finding that the charges levelled against the Respondent
have been proved. Thereafter, a second Show Cause Notice was issued to the
Respondent. Considering the contentions of the Respondent, the Director
General and the Inspector General of Police passed an Order of Dismissal of
the Respondent from service on 30th September 2005. The period of
suspension was ordered to be treated as the period of suspension only. The
Respondent filed an Appeal before the Government which came to be
dismissed on 8th September 2006.
5. Aggrieved against the order of punishment, the Respondent invoked
the jurisdiction of the Tribunal. The Tribunal set aside the order of
punishment by holding that the Criminal Court on the same set of facts has
not placed reliance on the deposition of the Witnesses, therefore, it was not
proper on the part of the Disciplinary Authority to rely upon such evidence
to come to the conclusion that the Respondent has demanded an amount of
`40,000 and he settled for `20,000. The Tribunal further did not agree with
the findings of the IO or the Disciplinary Authority that the charges have
been proved as there is no charge on record of receipt of `20,000. The
Tribunal further held that the water in which the hands of the Respondent
were washed, turned pink due to the ink of the pen, as deposed by PW3
Balaraju in his statement. The High Court found that similar evidence has
not been accepted in Criminal Trial and that there are discrepancies in the
evidence of the Witnesses which make it unreliable. The High Court
recorded the following four discrepancies in the Departmental proceedings:
(i) In the Complaint Smt. Nirmala says that on 26.8.1998 for the first time
she met the Applicant in his house at Mysore but in the deposition, she
states that she went to the house of the Applicant on 27.8.1998 for the
first time along with panch Witness Saroja and the money was offered;
(ii) If the evidence of PW4 Puttaraju CHC 141 is to be believed, he and PW5
Shivakumar CPC 22 went to the house of complainant Nirmala on
13.8.1998, whereas the evidence of PW5 shows that both of them went to the
house of the Complainant on 14.8.1998. According to the Complaint both of
them had gone to the Complainant’s house on 24.8.1998 and not earlier;
(iii) According to the Complainant she had given Complaint in the first
instance in English Written by her and later the present Complaint,

Labour Law Notes / January-2021

January 2021 State of Karnataka v. N. Gangaraj 21
(SC) (Hemant Gupta, J.)
marked in the inquiry was got typed; the original Complaint given in
English has been suppressed.
(iv) The Complaint was registered on 27.8.1998 whereas the evidence
shows that panch Witness had been informed to come on 26.8.1998. The
complaint does not say anywhere that she had gone to the office of the
Lokayukta Police on 26.8.1998.
6. The Disciplinary Authority has taken into consideration the evidence
led before the IO to return a finding that the charges levelled against the
Respondent stand proved.
7. We find that the interference in the Order of Punishment by the
Tribunal as affirmed by the High Court suffers from patent error. The power
of Judicial Review is confined to the decision-making process. The power of
Judicial Review conferred on the constitutional Court or on the Tribunal is
not that of an Appellate Authority.
8. In State of Andhra Pradesh and ors. v. S. Sree Rama Rao, AIR 1963
SC 1723, a Three-Judge Bench of this Court has held that the High Court is
not a Court of Appeal over the decision of the authorities holding a
Departmental Enquiry against a Public servant. It is concerned to determine
whether the enquiry is held by an authority competent in that behalf, and
according to the procedure prescribed in that behalf, and whether the Rules
of Natural Justice are not violated. The Court held as under:
“7. ...The High Court is not constituted in a proceeding under Article 226 of the
Constitution a Court of Appeal over the decision of the authorities holding a
Departmental Enquiry against a Public servant: it is concerned to determine
whether the enquiry is held by an authority competent in that behalf, and
according to the procedure prescribed in that behalf, and whether the Rules of
Natural Justice are not violated. 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 that the delinquent officer is
guilty of the charge, it is not the function of the High Court in a Petition for a
writ under Article 226 to review the evidence and to arrive at an independent
finding on the evidence....”
9. In B.C. Chaturvedi v. Union of India and ors., 1997 (4) LLN 65 (SC)
: 1995 (6) SCC 749, again, a Three-Judge Bench of this Court has held that
power of Judicial Review is not an Appeal from a decision but a review of
the manner in which the decision is made. Power of Judicial Review is
meant to ensure that the individual receives fair treatment and not to ensure
that the conclusion which the authority reaches is necessarily correct in the
eyes of the Court. The Court/Tribunal in its power of Judicial Review does
not act as an Appellate Authority to reappreciate the evidence and to arrive
at its own independent findings on the evidence. It was held as under:
“12. Judicial Review is not an Appeal from a decision but a review of the
manner in which the decision is made. Power of Judicial Review is meant to

Labour Law Notes / January-2021

22 LABOUR LAW NOTES 2021 (1) LLN

ensure that the individual receives fair treatment and not to ensure that the
conclusion which the authority reaches is necessarily correct in the eye of the
Court. When an inquiry is conducted on charges of misconduct by a Public
servant, the Court/Tribunal is concerned to determine whether the inquiry was
held by a Competent Officer or whether Rules of Natural Justice are complied
with. Whether the findings or conclusions are based on some evidence, the
authority entrusted with the power to hold inquiry has jurisdiction, power and
authority to reach a finding of fact or conclusion. But that finding must be based
on some evidence. Neither the technical Rules of Evidence Act nor of proof of
fact or evidence as defined therein, apply to Disciplinary proceeding. When the
authority accepts that evidence and conclusion receives support therefrom, the
Disciplinary Authority is entitled to hold that the delinquent officer is guilty of
the charge. The Court/Tribunal in its power of Judicial Review does not act as
Appellate Authority to reappreciate the evidence and to arrive at its own
independent findings on the evidence. The Court/Tribunal may interfere where
the authority held the proceedings against the delinquent officer in a manner
inconsistent with the Rules of Natural Justice or in violation of statutory Rules
prescribing the mode of inquiry or where the conclusion or finding reached by
the Disciplinary Authority is based on no evidence. If the conclusion or finding
be such as no reasonable person would have ever reached, the Court/Tribunal
may interfere with the conclusion or the finding, and mould the relief so as to
make it appropriate to the facts of each case.
13. The Disciplinary Authority is the sole Judge of facts. Where Appeal is
presented. The Appellate Authority has co-extensive power to reappreciate the
evidence or the nature of punishment. In a Disciplinary Inquiry the strict proof of
legal evidence and findings on that evidence are not relevant. Adequacy of
evidence or reliability of evidence cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel, 1964 (4) SCR 781, this Court held
at page 728 that if the conclusion, upon consideration of the evidence, reached by
the Disciplinary Authority, is perverse or suffers from patent error on the face of
the record or based on no evidence at all, a writ of certiorari could be issued.”
10. In High Court of Judicature at Bombay through its Registrar v.
Shashikant S. Patil and anr., 2000 (1) LLN 317 (SC) : 2000 (1) SCC 416,
this Court held that interference with the decision of Departmental
Authorities is permitted if such authority had held proceedings in violation
of the Principles of Natural Justice or in violation of statutory Regulations
prescribing the mode of such enquiry while exercising jurisdiction Under
Article 226 of the Constitution. It was held as under:
“16. The Division Bench of the High Court seems to have approached the case as
though it was an Appeal against the order of the administrative/Disciplinary
Authority of the High Court. Interference with the decision of Departmental
Authorities can be permitted, while exercising jurisdiction under Article 226 of the
Constitution if such authority had held proceedings in violation of the Principles of
Natural Justice or in violation of statutory Regulations prescribing the mode of
such enquiry or if the decision of the authority is vitiated by considerations
extraneous to the evidence and merits of the case, or if the conclusion made by the
authority, on the very face of it, is wholly arbitrary or capricious that no reasonable

Labour Law Notes / January-2021

January 2021 State of Karnataka v. N. Gangaraj 23
(SC) (Hemant Gupta, J.)
person could have arrived at such a conclusion, or grounds very similar to the
above. But we cannot overlook that the Departmental Authority (in this case the
Disciplinary Committee of the High Court) is the sole Judge of the facts, if the
enquiry has been properly conducted. The settled legal position is that if there is
some legal evidence on which the findings can be based, then adequacy or even
reliability of that evidence is not a matter for canvassing before the High Court in a
Writ Petition filed Under Article 226 of the Constitution.”
11. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, 2011
(4) SCC 584, this Court held that the Courts will not act as an Appellate
Court and reassess the evidence led in the Domestic Enquiry, nor interfere
on the ground that another view is possible on the material on record. If the
enquiry has been fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the reliable nature of
the evidence will not be ground for interfering with the findings in
Departmental enquiries. The Court held as under:
“7. It is now well settled that the Courts will not act as an Appellate Court and
reassess the evidence led in the Domestic Enquiry, nor interfere on the ground
that another view is possible on the material on record. If the enquiry has been
fairly and properly held and the findings are based on evidence, the question of
adequacy of the evidence or the reliable nature of the evidence will not be
grounds for interfering with the findings in Departmental Enquiries. Therefore,
Courts will not interfere with findings of fact recorded in Departmental
Enquiries, except where such findings are based on no evidence or where they
are clearly perverse. The test to find out perversity is to see whether a Tribunal
acting reasonably could have arrived at such conclusion or finding, on the
material on record. Courts will however interfere with the findings in
Disciplinary matters, if Principles of Natural Justice or statutory Regulations
have been violated or if the order is found to be arbitrary, capricious, mala fide
or based on extraneous considerations. (vide B.C. Chaturvedi v. Union of India,
1995 (6) SCC 749; Union of India v. G. Gunayuthan, 1997 (7) SCC 463; and
Bank of India v. Degala Suryanarayana, 1999 (5) SCC 762, High Court of
Judicature at Bombay v. Shashikant S. Patil, 2001 (sic 2000) (1) SCC 416).
... ... ...
12. The fact that the Criminal Court subsequently acquitted the Respondent by giving
him the benefit of doubt, will not in any way render a completed Disciplinary
proceedings invalid nor affect the validity of the finding of guilt or consequential
punishment. The standard of proof required in Criminal proceedings being different
from the standard of proof required in Departmental enquiries, the same charges and
evidence may lead to different results in the two proceedings, that is, finding of guilt
in Departmental proceedings and an acquittal by giving benefit of doubt in the
Criminal proceedings. This is more so when the Departmental proceedings are more
proximate to the incident, in point of time, when compared to the Criminal
proceedings. The findings by the Criminal Court will have no effect on previously
concluded Domestic Enquiry. An Employee, who allows the findings in the enquiry
and the punishment by the Disciplinary Authority to attain finality by non-challenge,
cannot after several years, challenge the decision on the ground that subsequently, the
Criminal Court has acquitted him.”

Labour Law Notes / January-2021

24 LABOUR LAW NOTES 2021 (1) LLN

12. In another Judgment reported as Union of India v. P. Gunasekaran,

2015 (2) SCC 610, this Court held that while reappreciating evidence the
High Court cannot act as an Appellate Authority in the Disciplinary
proceedings. The Court held the parameters as to when the High Court shall
not interfere in the Disciplinary proceedings:
“13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been
conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.”
13. On the other hand learned Counsel for the Respondent relies upon the
Judgment reported as Allahabad Bank v. Krishna Narayan Tewari, 2017
(2) LLN 9 (SC) : 2017 (2) SCC 308, wherein this Court held that if the
Disciplinary Authority records a finding that is not supported by any
evidence whatsoever or a finding which is unreasonably arrived at, the Writ
Court could interfere with the finding of the Disciplinary proceedings. We
do not find that even on touchstone of that test, the Tribunal or the High
Court could interfere with the findings recorded by the Disciplinary
Authority. It is not the case of no evidence or that the findings are perverse.
The finding that the Respondent is guilty of misconduct has been interfered
with only on the ground that there are discrepancies in the evidence of the
Department. The discrepancies in the evidence will not make it a case of no
evidence. The Inquiry Officer has appreciated the evidence and returned a
finding that the Respondent is guilty of misconduct.
14. The Disciplinary Authority agreed with the findings of the Enquiry
Officer and had passed an Order of Punishment. An Appeal before the State
Government was also dismissed. Once the evidence has been accepted by
the Departmental Authority, in exercise of power of Judicial Review, the
Tribunal or the High Court could not interfere with the findings of facts
recorded by reappreciating evidence as if the Courts are the Appellate
Authority. We may notice that the said Judgment has not noticed Larger
Bench Judgments in S. Sree Rama Rao and B.C. Chaturvedi as mentioned
above. Therefore, the Orders passed by the Tribunal and the High Court
suffer from patent illegality and thus cannot be sustained in law.
Accordingly, Appeal is allowed and Orders passed by the Tribunal and the
High Court are set aside and the Order of Punishment imposed is restored.
  

Labour Law Notes / January-2021

January 2021 State of Odisha v. Ganesh Chandra Sahoo 25
(SC) (Hrishikesh Roy, J.)
2021 (1) LLN 25 (SC)
IN THE SUPREME COURT OF INDIA
D.Y. Chandrachud & Hrishikesh Roy, JJ.
C.A. No.9514 of 2019 (S.L.P.(C) No.1731 of 2019)
10.1.2020
State of Odisha and others .....Appellants
Vs.
Ganesh Chandra Sahoo .....Respondent
SERVICE LAW — ARMED SERVICE — Police — Unauthorised
absence — Order of Discharge — Whether warranting interference —
Respondent serving as Follower Orderly, availed leave for nine days,
but did not report to duty for 7 years — Stand of Respondent that he
was suffering from Mental illness — In spite of multiple Notices and
Letters, Respondent failed to appear before CMDO for verification of
his Medical status — After conduct of Disciplinary Inquiry, Order of
Discharge from service passed against Respondent in year 1993 —
Tribunal refused to interfere with same — High Court in Writ Petition,
modified punishment from Discharge to one of Compulsory Retirement
— Held, No infirmity with Disciplinary proceeding leading to Discharge
Order — Medical Certificate produced by Respondent pertaining to
year 1998, but no mention that he was suffering from Mental illness
from year 1991 — Moreover, said Certificate made on basis of referral
of local MLA — Doctor issuing Certificate likely did not treat
Respondent — In such circumstances, Order of Discharge passed
against Respondent, upheld — Judgment of High Court modifying
same, erroneous and set aside — Appeal allowed. (Paras 14 - 17 & 20)
ORISSA SERVICE CODE, 1939, Rule 72 — Mental Ailment — Leave
for more than 5 years — Eligibility of — Respondent absent from
service for 7 years citing Mental illness — Leave for Government
Servant for more than 5 years stipulated in Rule 72 only in exceptional
cases — In instant case, self-serving Medical Certificate produced by
Respondent to justify leave of 7 years on account of claimed Mental
illness — Respondent, held, did not produce himself before Authority to
verify his Medical status — No exceptional circumstances in
Respondent’s case justifying leave of more than 5 years. (Para 21)
CASES REFERRED
Rajinder Kumar v. State of Haryana, 2016 (1) LLN 267 ....................................... 12, 14, 18, 20
Anindita Pujari, Government Counsel for Appellants.
Nikilesh Ramachandran, Advocate for Respondent.
Finding — C.A. allowed — No costs.

Labour Law Notes / January-2021

26 LABOUR LAW NOTES 2021 (1) LLN

JUDGMENT
Hrishikesh Roy, J.
1. The State of Odisha, the Director General & Inspector General of
Police and others in the Police Department have filed this Appeal to
challenge the Judgment and Order, dated 2.5.2018 in Writ Petition (C)
No.7053/2011. In the impugned Judgment, the High Court of Orissa has
substituted the punishment of discharge for the Respondent, to Compulsory
retirement and to this extent modified the Order, dated 2.12.2010
whereunder, the Orissa Administrative Tribunal had dismissed the O.A.
No.1459(C)/2003 filed by the discharged Orderly.
2. Before disciplinary action was taken, the Respondent was serving as a
Follower Orderly, in the OSAP 4th Battalion, Rourkela. He secured leave
from 25.5.1991 to 4.6.1991 to visit his ailing mother and proceeded to his
native village. While on leave, he suffered from cerebral malaria and was
admitted in the C.T. Hospital, Cuttack on 31.5.1991 and thereafter he was
medically advised to take rest for 2 months. When the Respondent applied
for leave extension, on 12.6.1991 (Annexure P1), the Commandant directed
the Respondent to appear before the CDMO, Cuttack for Medical
examination/treatment and the likely period needed for treatment, was to be
intimated to the Commandant. When the Respondent failed to appear for the
Medical test, a second communication was issued on 22.10.1991 in the same
line. But since the Respondent did not heed those communications and his
whereabouts were not intimated even after months of leave expiry, the
Respondent was sternly directed on 13.3.1992 to have his Medical
examination done by the CDMO, Cuttack within 7 days of receipt of the
letter, to establish the genuineness of his sickness plea or else, he will face
Departmental action for unauthorized leave overstay.
3. Following the failure of the Respondent to have himself medically
examined and resume his duties, the Departmental proceeding was initiated
against him and the Charge Memo (26.10.1992) and other relevant
documents were duly served upon the Respondent, at his native place. The
Respondent, however, did not submit any explanation and thereafter he
refused to accept the notice and the depositions that were sent to him.
Because of the non- participation of the delinquent, the proceeding had to be
conducted ex parte and the Inquiry Officer found the Respondent guilty of
the charge. Accepting the finding of the Inquiry Officer, the Commandant
issued the 2nd Show Cause Notice proposing the penalty of dismissal and
eventually, the Respondent was discharged from service vide the Battalion
Order No.4189, dated 30.12.1993 (Annexure P6). The discharge order
indicates that the delinquent did not respond to the Second Show Cause
Notice and in fact the postal Department’s endorsement on the body of the
envelope indicated that the Respondent refused to accept the notice sent by
the Disciplinary Authority.

Labour Law Notes / January-2021

January 2021 State of Odisha v. Ganesh Chandra Sahoo 27
(SC) (Hrishikesh Roy, J.)
4. Four years after the Discharge Order (30.12.1993), the Respondent
addressed an Appeal to the Appellant No.2 herein and although the Appeal
was time barred, the Authority considered the same on merit but rejected the
Appeal on the ground that Disciplinary action was in pursuant to a fair
Inquiry without any procedural irregularity and the penalty awarded is
justified. Following the rejection of his Appeal, the Respondent addressed a
grievance Petition to the Chief Minister of Orissa which however was
rejected by the Government Letter, dated 19.9.2000.
5. A decade after the Discharge Order and three years following the
rejection of the grievance Petition, the Respondent approached the Orissa
Administrative Tribunal with O.A. No.1459 (C)/2003 to challenge the
disciplinary action. The Respondent contended before the Tribunal that he
was suffering from mental ailment and therefore he was not in a position to
respond to the Departmental notices sent to him. In support of his plea of
mental incapacity, the Respondent furnished the Medical Certificate, dated
21.1.1998 of Dr. G.C. Kar, Professor & Head of the Department, Psychiatry,
SCB Medical College, Cuttack, which is in the following terms:
“This is to certify that Shri Ganesh Chandra Sahu, 40 years, s/o Shri
Sanatan Sahu, Village Gopalpur, P.O. Raghunathpur, P.S./District
Jagatsinghpur reported before me with history of mental illness since
3.6.1991 being referred by his area M.L.A.
He has been treated for a long period because of repeat cyclic attack of
Maniac Depression Psychosis following cerebral malaria from 3.6.1991
till date. During the period under treatment he was incapable of taking
responsibility and was advised rest.
Reviewing all my past and present examination finding, I am of the
opinion that he is fit to take up duty from 22.1.1998.
Leave for the period of his absence from Government duty from 3.6.1991
till 21.1.1998 may please be recommended to him on Medical ground.”
6. The Tribunal noted the relevant facts and while adverting to the above
Medical Certificate the Tribunal noticed that the certifying Doctor has not
specifically mentioned that for the period covered by his Certificate
(3.6.1991 - 21.1.1998), the Respondent was under his treatment. It was also
found to be significant that Respondent has not pleaded that he was under
treatment of psychiatrist at any time prior to issuance of the Medical
Certificate by the psychiatry specialist. Since the Doctor’s opinion on the
patient’s mental health covered about 7 years period, the veracity of the
Medical Certificate was doubted by the Tribunal.
7. In their order, the Tribunal adverted to the manner of conducting the
Disciplinary proceeding and also the letters and notices addressed to the
delinquent-Respondent and the refusal by the Respondent to receive the
communication sent to him by the Disciplinary authority. It was then noted

Labour Law Notes / January-2021

28 LABOUR LAW NOTES 2021 (1) LLN

that the Respondent had unsuccessfully approached the Appellate Authority

about four years after the Discharge Order.
8. Considering the aforenoted circumstances, the Tribunal held that
adequate reasonable opportunity was afforded to the delinquent and there
were no procedural flaws in the Departmental action. The Tribunal also felt
that the case of the Respondent was not an exceptional one covered under
Rule 72 of the Orissa Service Code1 With such reasoning the Respondent’s
OA was dismissed by the Tribunal on 2.12.2010 (Annexure P13).
9. Aggrieved by the rejection of his OA by the Tribunal, the Respondent
approached the High Court of Orissa with the W.P.(C) No.7053/2011 where
again, he projected that when he proceeded on leave to his native village, he
suffered from cerebral malaria and was admitted in the C.T. Hospital,
Cuttack on 31.5.1991. Following the attack of cerebral malaria, the
Respondent developed psychiatric problem and with these explanations he
tried to justify his lack of response and non-participation in the Disciplinary
proceeding. According to the Respondent, soon after he recovered from his
ailments, armed with the Medical Certificate, dated 21.1.1998 he reported to
resume his duty but he was not allowed to re-join the Battalion.
10. The Appellant-State on the other hand projected before the High Court
that on receiving the request for leave extension on Medical ground, the
Commandant of the 4th Battalion had directed the Respondent vide consecutive
Memos, (dated 12.6.1991 & 22.10.1991), to appear before the CDMO, Cuttack
but he failed to present himself for Medical assessment of his health condition.
In fact Specific communication was sent to the Respondent on 13.3.1992 that
unless he appears before the CDMO, Departmental proceeding would be
initiated against him. The Respondent however defied the Commandant’s
direction for his Medical examination and resumption of duty and accordingly
he was subjected to Departmental proceeding where he was found guilty of the
charge by the Inquiry Officer. The Commandant agreed with the finding
recorded against the delinquent and issued him the Second Show Cause Notice
proposing the dismissal penalty but faced with no response, the Respondent was
discharged from service vide Order, dated 30.12.1993.
11. The High Court however noted that the Respondent has no past
history of unauthorized absence. Then the Medical Certificate issued by the
Professor & HoD of Psychiatric Department, SCB, Medical College and
Hospital, Cuttack was adverted to and the Division Bench felt that such
Medical Certificate issued by an expert cannot be brushed aside lightly. The
Court also made the off the cuff observation to the effect that patient
suffering from cerebral malaria develop mental illness. Proceeding with such
perception, the punishment was found to be excessive and accordingly the
High Court substituted the penalty of discharge with Compulsory
Retirement.

1. Orissa Service Code, 1939

Labour Law Notes / January-2021

January 2021 State of Odisha v. Ganesh Chandra Sahoo 29
(SC) (Hrishikesh Roy, J.)
12. In support of its decision to substitute the penalty, the High Court
relied on the ratio in Rajinder Kumar v. State of Haryana and another,
2016 (1) LLN 267 : AIR 2015 SC 3780, wherein Justice Kurian Joseph
speaking for a Two-Judge Bench of this Court opined that since different
punishments are prescribed under the Rules, the Disciplinary Authority
should exercise its discretion to decide on the appropriate punishment, taking
note of the gravity of the misconduct and its impact on the service.
13. Representing the Appellants, the learned Government Counsel Ms.
Anindita Pujari submits that the High Court had erred in applying the ratio of
a dissimilar case to grant relief to the errant Employee. On the other hand,
Mr. Nikilesh Ramachandran, the learned Counsel argues that the
Respondent’s mental condition during 1991 to 1998 must be borne in mind
to understand why he failed to participate in the Disciplinary proceeding
and/or why, he did not re-join the battalion after expiry of leave.
14. In order to decide on the applicability of the ratio in Rajinder Kumar
(supra), we must advert to the facts in this case. Here the Respondent after
availing leave for nine days (from 25.5.1991 to 4.6.1991), did not report
back to his Battalion until 1998. But long before that, the Respondent having
not presented himself before the CDMO, for his Medical examination, was
proceeded departmentally and was discharged from service on 30.12.1993.
Therefore, unlike in the case of Rajinder Kumar (supra) where the
concerned delinquent was absent only for 37 days, the Respondent herein
did not report back for duties for about seven years. Significantly, he
thwarted his Medical examination by disregarding the direction of the
Commandant to present himself before the CDMO, Cuttack. In the cited case
where delinquent was absent for 37 days, the punishment of discharge was
found to be disproportionate and it was altered to Compulsory Retirement.
But in the present case, the Respondent failed to report back for duty for
about seven years after availing leave for 9 days. Therefore, the nature and
degree of misconduct in the two cases are not of the same category and
hence the two cases with different facts could not have been decided, in our
opinion, with the same judicial standard.
15. It is also significant that the High Court failed to notice that the
Respondent did not present himself for the official verification of his
Medical status by the CDMO and thereby prevented confirmation of his
pleaded Medical condition. In this manner, the Respondent not only defied
the Commandant’s direction but remained absent without authorization, for
about seven years. Later, he tried to justify his long absence without
producing any contemporaneous Medical records.
16. The impugned Judgment reflects that the primary basis for the High
Court to have intervened in favour of the Respondent was the Medical
Certificate, (dated 21.9.1998), issued by Dr. G.C. Kar, who was the then
Professor & HoD of Psychiatric Department, SCB, Medical College and
Hospital, Cuttack. But interestingly, the certifying Doctor does not

Labour Law Notes / January-2021

30 LABOUR LAW NOTES 2021 (1) LLN

categorically mention that the Respondent was under his treatment since
1991. Most unusually, the Certificate reflects that on reference by the local
MLA, the Respondent reported before the specialist Doctor on 21.1.1998.
Therefore the Respondent’s was not a referral case by a Doctor, who might
have been treating the Respondent during 1991 to 1998. If the Respondent
was a patient under Dr. Kar, there would have no need for the MLA’s
reference and the Doctor could have issued the Certificate based on his own
line of treatment and medication. It is for such logical fallacy, the Tribunal
doubted the veracity of the Medical Certificate, which reported on the
Respondent’s purported mental incapacity, between 1991 & 1998.
17. In granting relief to the Respondent in his Writ Petition, the High Court
should have considered that the Respondent was absent from duty for seven
long years and he was aware of the Discharge Order passed against him on
30.12.1993. As regards the plea of mental illness, which might have
incapacitated the Respondent from either reporting for duty or to participate in
the Disciplinary proceeding, the Court should have borne in mind the failure
of the Respondent to make himself available before the CDMO to crosscheck
his pleaded Medical condition This was in defiance of the repeated
communications addressed to the absentee-Employee by the Commandant of
the Battalion. It is also of significance that neither the Tribunal nor the High
Court found any infirmity with the Disciplinary proceeding, which led to the
issuance of the Discharge Order against the delinquent on 30.12.1993.
18. In the above circumstances, when factual finding was recorded by the
Tribunal on fairness of the Disciplinary proceeding with due opportunity to
the delinquent, the substitution of the penalty of discharge, was not
warranted. This is more so as the High Court found support for their decision
from Rajinder Kumar (supra) where the concerned constable was
unauthorizedly absent for 37 days whereas the Respondent herein had failed
to report back for duty for long 7 years, from 1991 to 1998.
19. If the Respondent had actually suffered from cerebral malaria since
3.6.1991 and was subjected to frequent cyclic attack of Maniac Depression
Psychosis, as claimed, necessary proof of such suffering from the concerned
Doctor/Hospital, who were providing him the treatment, ought to have been
produced. Moreover, he never allowed for cross verification of his pleaded
Medical condition by presenting himself before the CDMO in 1991 or
thereafter. Instead, the Respondent only produced the 21.1.1998 Certificate
of the HoD, Psychiatry who may have had no role in the treatment of the
Respondent. It therefore appears to be a case of Certificate of convenience
on the purported symptoms and mental ailment of the Respondent from 1991
to 1998, without support of any contemporaneous Medical records. Most
curiously, the Doctor had issued the Certificate on the basis of reference
made by the local MLA but not on the basis of referral by Doctor/Hospital,
which might have been involved with the Respondent’s treatment during
1991 to 1998.

Labour Law Notes / January-2021

January 2021 State of Odisha v. Ganesh Chandra Sahoo 31
(SC) (Hrishikesh Roy, J.)
20. In the present case, we are inclined to think that the Respondent by
remaining away from duty since 1991 to 1998 without producing
contemporaneous medical record has not only been irresponsible and
indisciplined but tried to get away with it by producing the Certificate of a
specialist Doctor, who may not have treated the Respondent. Significantly,
although the Respondent produced a Certificate of a psychiatric specialist, he
never claimed that he received treatment from any psychiatric Doctor. In
such backdrop, the High Court should not have invoked the self serving
Medical Certificate. The Court wrongfully relied on Rajinder Kumar (supra)
where this Court’s intervention was in entirely different circumstances.
Besides the Doctrine of proportionality is not attracted in the present facts.
21. There is another aspect, which will require our consideration. Before
the Tribunal, the Counsel for the Respondent submitted that for an Employee
suffering from mental ailment, his situation should be treated as an
exceptional case under Rule 72 of the Orissa Code, which deals with leave
for Government servant remaining absent for over five years. Under Rule 72,
no leave of any kind is admissible for period exceeding five years unless the
Government determines the case to be one of exceptional circumstances. The
Rule 72 is quoted below for ready reference:
“72. (1) No Government servant shall be granted leave of any kind for a
continuous period exceeding five years.
(2) Where a Government servant does not resume duty after remaining on leave
for a continuous period of five years, or where a Government servant after the
expiry of his leave remains absent from duty otherwise than on foreign service or
on account of suspension, for any period, which together with the period of the
leave granted to him exceeds five years, he shall, unless Government in view of
the exceptional circumstances of the case otherwise determine, be removed from
service after following the procedure laid down in the Orissa Civil Services
(Classifications, Control and Appeal) Rules, 1962.”
On careful reading of the above provision we are quite sure that the
situation here is not one of exceptional circumstances. In fact the veracity of
the self-serving Medical Certificate to justify the seven years absence, was
correctly doubted by the Tribunal.
22. In the above circumstances, the High Court should not have granted
relief to the Respondent solely on the basis of the Medical Certificate of the
specialist Doctor, who may not have personally treated the patient. In the
absence of relevant and contemporaneous Medical records, the High Court
should not have interfered with the Disciplinary action and ordered for a lesser
penalty. The gravity of the misconduct of the Respondent was overlooked and
unmerited intervention was made with the Tribunal’s rightful decision to
decline relief in the O.A. No.1459(C)/2003 filed by the Respondent.
23. In view of the foregoing, we set aside the impugned Judgment and Order
of the High Court and allow the Appeal. There shall be no order as to Cost.
  

Labour Law Notes / January-2021

32 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 32 (SC)

IN THE SUPREME COURT OF INDIA
Dr. D.Y. Chandrachud & Ajay Rastogi, JJ.
C.A. Nos.8908-8910 of 2019 (S.L.P.(C) Nos.12636-12638 of 2015)
21.11.2019
Aurangabad Municipal Corporation and others .....Appellants
Vs.
Jayant and others .....Respondents
SERVICE LAW — Reversion — Principles of Natural Justice —
Whether followed — Decision of Municipal Commissioner reverting R1
from post of Town Planner — No Show Cause Notice or opportunity of
being heard given to R1 before passing said Order — Held, reversion of
Employee, a matter of substantive prejudice — Order of Reversion
passed in instant case without following Principles of Natural Justice,
unsustainable and set aside — Appeal allowed. (Paras 16 & 17)
Sudhanshu S. Choudhari, Yogesh Kolte & Mahesh P. Shinde, Advocates for Appellant.
Chander Uday Singh, Senior Advocate, Suresh Pandey, Mayank Pandey, Bharti
Chawla, Nishant Ramakantrao Katneshwarkar & Anoop Kandari, Advocates for
Respondents.
Finding — C.As. allowed — No costs.
JUDGMENT
Dr. D.Y. Chandrachud, J.
1. Delay condoned.
2. Leave granted.
3. These Appeals arise from three decisions of the High Court of
Judicature at Bombay:
(i) An Order, dated 20, October 2012 allowing a Review Petition arising
from its Judgment, dated 29 September 2003 by which the Writ Petition
filed by the First Respondent was dismissed;
(ii) A Judgment, dated 12 June 2014 by which the Writ Petition filed by
the First Respondent was allowed; and
(iii) An Order, dated 13 February 2015 dismissing the Review Petition
filed by the Appellant.
4. The First Respondent was appointed as a Junior Engineer in the
Engineering Department of Aurangabad Municipal Corporation on 27 July
1985. On 11 May 1988, he was transferred to the Planning Department on a
temporary basis in the post of Planning Assistant. In the Seniority List,

Labour Law Notes / January-2021

January 2021 Aurangabad Municipal Corporation v. Jayant 33
(SC) (Dr. D.Y. Chandrachud, J.)
which was published on 12 July 1982 & 16 March 1992, the seniority of the
First Respondent was shown as a Planning Assistant in the Town Planning
Department with a remark that he had opted for the cadre of Planning
Assistant from 11 May 1988.
5. Recruitment Rules for various posts in the Municipal Corporation were
published, on being approved by the State Government under Section 455(i)
of the Bombay Provincial Municipal Corporations Act, 1949 under a
Government Resolution, dated 16 May, 1994.
6. The Schedule to the recruitment rules, includes the post of Junior
Engineer/Assistant Engineer/Sectional Engineer at Serial No.15 and the post
of Town Planning Assistant at Serial No.36.
7. The First Respondent was transferred from the Town Planning
Department as a Junior Engineer in the Water Supply Department on 13
June 1995. Between July 1996 and September 1997 he was deputed to work
with the Minister of Transport, He was repatriated to the Town Planning
Department in September 1997. On 25 September 1997, the First
Respondent was deputed as Assistant Town Planner in the Town Planning
Department. After the Municipal Corporation converted the post of
Administrative Officer to that of Town Planner, the First Respondent was
promoted on 29 June 1998 on probation to the post. On 24 May 1999 he was
confirmed as a Town Planner.
8. A Writ Petition was filed before the Bombay High Court by Sakharam
Dhondiba Panzade, W.P. No.2156 of 1988 challenging the Promotion, which
was granted to the post of Deputy Engineer in the Engineering Department.
The Respondent was not a party to the proceedings. The High Court, by a
Judgment and Order, dated 3rd August, 2001, set aside the Promotion Orders
of the Second and Third Respondents and issued the following direction:
“....We direct the Municipal Corporation to reconstitute the selection committee to
consider the case of the Petitioner along with all eligible Sectional/Junior Engineers
as in August 1989, for the post of Dy. Engineer, on the basis of the principles of
seniority cum merit afresh and all the vacant posts, at that time, shall be filled in
accordingly. If any of the Respondents are not found to be eligible for Promotion by
the Selection Committee constituted pursuant to this order, no recovery shall be
made from their salaries as they have already worked in the higher post. In case the
Petitioner is found to be eligible for Promotion, he shall be given a deemed date of
promotion with effect from 3rd of August, 1989 and his seniority in the post of Dy.
Engineer shall be counted from that date. The newly constituted Selection
Committee to complete the selection process for the post of Dy. Engineer as
expeditiously as possible and in any case within two months from today.”
9. A final Seniority List of diploma holding engineers was published in
which the First Respondent was shown at Serial No.13 as Sectional Engineer
as on 1 January, 1995 (w.e.f. 27 December 1990). Thereafter, on 13 August
2002 a provisional Seniority List of Deputy Engineers was published in which
the First Respondent was shown as a Deputy Engineer w.e.f. 7 December

Labour Law Notes / January-2021

34 LABOUR LAW NOTES 2021 (1) LLN

1998. An objection was raised to the Seniority List. The Municipal

Commissioner by an Order, dated 27 August 2002 issued a final Seniority List
by deleting the name of the First Respondent on the ground that the Town
Planning Department to which the First Respondent belonged is a separate
Department. However, on the very next day (27 August 2002), an order was
passed by the Municipal Commissioner reverting the First Respondent to the
post of Sectional Engineer. This purportedly was in compliance with the Order
passed by the High Court in Writ Petition No.2156/1988.
10. The order of reversion was challenged by the First Respondent before
the High Court. On 29 September 2003; the High Court rejected the Writ
Petition with the following order:
“Heard Shri. V.J. Dixit the learned Counsel for the Petitioner, who has assailed the
Order, dated 28.8.2002, passed by the Commissioner, Municipal Corporation,
Aurangabad, by which the promotion granted in favour of the Petitioner as per the
General Body Resolution No.223/2, dated 20.4.2000 was cancelled and from the post
of Town Planner he was brought back to the post of Sectional Engineer.
Admittedly the Resolution, dated 20.4.2000 was in utter disregard to the
principal of Seniority-cum-Merit for granting promotion to a post in Class II
from a post in Class III. This was made known to the Corporation vide our
Judgment, dated 3.8.2001 in Writ Petition No.2156/1988. The Corporation has
accordingly reconsidered all the promotions granted to Class II posts and as per
our directions, fresh Promotion Orders have been issued, which were also
challenged in Writ Petition No.1535/2002. The said Petition was decided by us
on 1.8.2003. The prayer made in this Petition is substantially challenging the
impugned Order, dated 28.8.2002.
We are satisfied that the promotion granted to the Petitioner to the post of Town
Planner was itself illegal inasmuch as it was in violation of the principle of Seniority-
Cum-Merit and, therefore, no fault could be found with the impugned Order.
We also clarify that so far as the seniority of the Petitioner is concerned, the
same has to be considered from the initial date of joining under the Corporation
and in the respective categories along with other Candidates holding the same
qualifications and equivalent posts. If the Petitioner feels that he should be
retained in the Town Planning Department in the post he held prior to the
Resolution, dated 20.4.2000, he may make such a representation to the
Commissioner and the same shall be considered on its own merits. Petition is
rejected summarily save and except the directions set out earlier.”
11. A Special Leave Petition filed by the Respondent was dismissed on
17 October 2003 by this Court S.L.P.(C) No.18986 of 2003. A Review
Petition was filed by the First Respondent. The Review Petition was allowed
by the High Court on 20 October, 2012. Thereafter on 12 June 2014, the
Writ Petition was allowed on merits. A Petition by way of review, which
was moved by the Appellant was dismissed on 13 February 2015. This has
given rise to the proceedings before this Court in these Appeals.
12. While issuing notice on the Special Leave Petitions, this Court had by
an Order, dated 17 April 2015 stayed the operation of the Order of the High
Court.

Labour Law Notes / January-2021

January 2021 Aurangabad Municipal Corporation v. Jayant 35
(SC) (Dr. D.Y. Chandrachud, J.)
13. Assailing the Order of the High Court, the Municipal Corporation
urged before this Court that upon the dismissal of the Special Leave Petition
against the order of the High Court on 29 September 2003 a review was not
maintainable. On merits, the Judgment of the High Court has been assailed
on several grounds. In the view, which we propose to take, it may not be
necessary to consider these grounds at this stage.
14. The submissions urged in support of the Appeals by Mr. Sudhanshu
S. Choudhari, learned Counsel have been countered by Mr. C.U. Singh,
learned Senior Counsel, Mr. Singh urged that the appointment of the First
Respondent in the Town Planning Department since 1988 has not been
called in question as is evident from the fact that the Seniority Lists since
July 1989 reflect the name of the First Respondent in the Town Planning
Department. Moreover, it was submitted that the First Respondent was
promoted as an Assistant Town Planner on the completion of five years in
terms of a GO dated 7 July 1997 and as Town Planner on 29 June 1998.
Subsequently, the First Respondent was confirmed as Town Planner. Mr.
C.U. Singh submits that the proceedings before the High Court in Writ
Petition No.2156/1988 had no relevance to the appointment of the First
Respondent to the Town Planning Department nor was his promotion as
Town Planner in issue. The First Respondent was not a party to the Writ
proceedings, which dealt with a dispute over promotion as between three
persons in the Engineering Department. Hence, it was urged that the decision
of the High Court dated 3 August 2001 had no bearing on the service of the
first Respondent in the Town Planning Department. On 27 August 2002, the
Municipal Commissioner passed an order clarifying that the name of the
First Respondent would be deleted from the Seniority List of the
Engineering Department since his name was borne on the cadre of the Town
Planning Department. Despite this position, it has been urged that on the
very next day, the Municipal Commissioner proceeded to revert the First
Respondent, without affording to him an opportunity of being heard. On the
maintainability of the Review Petition, Mr. Singh urged that since the Order
passed by this Court in the Special Leave Petition was a non Speaking
Order, a Review Petition was maintainable having regard to the settled
principles of law that hold the field. Moreover, the Municipal Corporation
accepted the order in the Review, dated 20th October 2012 and urged
submissions on the merits of the Petition and it was only thereafter, upon the
declaration of the Judgment on 12th June 2014 and the rejection of the
Review Petition that this Court was moved Under Article 136 of the
Constitution.
15. For the purpose of the present appeals, we have proceeded on the
basis that the order passed by this Court in the Special Leave Petition on 17
October 2003 did not foreclose the avenue of a Review Petition, which was
open to the First Respondent. By the Order passed by this Court, the Special
Leave Petition was not entertained. Neither was leave granted nor was there
any expression of reasons, which would suggest that the view which

Labour Law Notes / January-2021

36 LABOUR LAW NOTES 2021 (1) LLN

weighed with the High Court was affirmed by this Court in the course of
disposal of the Special Leave Petition. In that view of the matter, a Petition
by way of review was maintainable.
16. The Order passed by the Municipal Commissioner on 28th August
2002 suffers from a fundamental error. The Municipal Commissioner’s
decision to revert the First Respondent from the post of Town Planner which
he had held since his appointment on probation on 29th June 1998 and after
his confirmation in service on the completion of probation on 29th May
1999 was without hearing the Respondent. Reversion of an Employee is a
matter of substantive prejudice. Hence, there can be no gainsaying the fact
that an opportunity of being heard is required to be afforded before an order
or reversion is passed. The Municipal Commissioner on 27th August 2002
issued an order deleting the name of the First Respondent from the Seniority
List of Deputy Engineers, noting that the Town Planning Department to
which the First Respondent belongs was a distinct Department of the
Municipal Corporation. The reversion of the First Respondent from the post
of Town Planner was without furnishing either a notice to show-cause or an
opportunity of being heard to the First Respondent. This is manifestly
contrary to law. The Order, dated 28 thAugust 2002 ought to have been set
aside on that ground alone. In this view of the matter, it was unnecessary for
the High Court to delve into several facets that have entered into the
decision, which has been ultimately rendered by the High Court.
17. Hence, we are inclined to quash and set aside the Order passed by the
Municipal Commissioner on 28th August 2002 on the ground that the Order
was passed in manifest violation of Principles of Natural Justice. We order
accordingly Hence, it is unnecessary for this Court to enter upon the reasons
which have weighed with the High Court. Since the order of reversion has
been set aside on the above ground, we clarity that it will be open to the
Municipal Corporation to take recourse to its remedies in accordance with
law and, in that event, none of the reasons which are contained in the
impugned decision of the High Court shall be regarded as binding or an
adjudication of the rights and contentions of the parties.
18. Learned Counsel, however, submitted that in the event that the
Municipal Corporation seeks to initiate action, some time Schedule may be
laid down for the early completion of the proceedings so as to obviate the
future prospect of the First Respondent being left in a state of uncertainty.
19. We clarify that it would be open to the First Respondent to initiate steps
within a period of two months from the receipt of a certified copy of this order
and to complete the process within a period of four months from today.
20. The Appeals are accordingly allowed to the aforesaid extent. The
order of the Municipal Commissioner, dated 28th August 2002 is quashed
and set aside. There shall be no order as to Costs.
  

Labour Law Notes / January-2021

January 2021 Executive Engineer, Electricity Distribution Division v. 37
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
2021 (1) LLN 37 (All.)
IN THE HIGH COURT OF ALLAHABAD
Jahangir Jamshed Munir, J.
Civil Misc.W.P. No.48556 of 2014
19.8.2019
Executive Engineer, Electricity Distribution Division and others .....Petitioners
Vs.
Presiding Officer, Labour Court, Rampur and others .....Respondents
U.P. INDUSTRIAL DISPUTES ACT, 1947 (28 of 1947), Sections 2-A &
2-K — Industrial Dispute — Reference — Delay in raising dispute —
Suppression of facts — Effect — It is case of Respondent that he was
employed as Lineman with Petitioner and worked for more than 240
days during every year — Terminated without service of Notice as
required — It is alleged that Workers junior to him retained and still in
service — Industrial Dispute raised — Labour Court passed Award
directing Reinstatement with continuity in service and Back Wages —
On challenge, held, dispute raised in 2011 before Conciliation Officer
relating to Termination of service in 1990 after 21 years — It is trite law
that what time period would constitute disentitling delay would depend
upon facts and circumstances of each case as held in Chief Engineer,
Ranjeet Sagar Dam v. Sham Lal, 2006 (9) SCC 124 — Labour Court,
before whom plea of grossly belated claim had been raised, did not
advert to aspect which was required to be addressed by Labour Court
— Had it been only issue about non-examination of this plea, it would
have merited remand of matter to Labour Court — Workman earlier
moved before Conciliation Officer in 1999 and also filed Writ Petition
and Special Appeal — He suppressed all these facts — Suppression of
facts constitute material, which if there before State Government or its
delegate, who exercised power to make reference, is strong probability
would have swayed subjective satisfaction of Authority other way —
Plea of suppression of fats raised by Employer in their Written
Statement — However, Labour Court not examined said plea —
Findings of Labour Court that similarly circumstanced Workers
reinstated in service absolutely without basis in as much as
reinstatement in that case founded on Judicial Order passed by this
Court — It is well settled that Award of Labour Court that is perverse
or manifestly illegal ought to be quashed — Instant case squarely falls in
category where Award rendered perverse ignoring material evidence —
There is unignorable plea of stale claim raised after 21 years with no
explanation forthcoming on Worker’s part — Award apart from being
manifestly illegal, liable to be quashed — Writ Petition allowed with
costs — Impugned Award quashed. (Paras 24 to 36)

Labour Law Notes / January-2021

38 LABOUR LAW NOTES 2021 (1) LLN

CASES REFERRED
Chief Engineer, Ranjit Sagar Dam v. Sham Lal, 2006 (9) SCC 124............................23, 24, 25
Kuldeep Singh v. Instrument Design Development & Facilities Centre, 2011 (1) LLN 1
(SC) ...................................................................................................................................25
Sapan Kumar Pandit v. U.P. State Electricity Board, 2001 (3) LLN 861 (SC).........................25
Western India Match Co. Ltd. v. Western India Match Co. Workers Union, 1970 (1) SCC
225 ....................................................................................................................................25
Usha Kiran, Advocate for Petitioners.
CSC, A.B. Vidyarthi, Dilip Kumar Yadav & R.B. Vidhtarthi, Advocates for
Respondents.
Finding — W.P. allowed with costs.
JUDGMENT
1. The Chairman of the U.P. Power Corporation Limited and two of its
Executive Engineers have petitioned this Court under Article 226 of the
Constitution seeking to quash an Award, dated 25.9.2013 (published on
15.4.2014) made in Adjudication Case No.57 of 2011, between these
Petitioners and their Workman, Mohd. Abrar, Respondent No.2. The said
Award that is hereinafter referred to as the ‘impugned Award’, has declared
termination of services of Mohd. Abrar, Respondent No.2, by the Petitioners
illegal with a further direction to reinstate the Second Respondent with
continuity of service and Back Wages.
2. Heard Ms. Usha Kiran, learned Counsel for the Petitioners and Sri
Dilip Kumar Yadav, learned Counsel appearing for the Workman-
Respondent No.2.
3. For the facility of reference, the three Petitioners shall be hereinafter
called the ‘Employers’, whereas Respondent No.2, Mohd. Abrar shall be
referred to as the ‘Workman’.
4. It is the Employers’ case that they were earlier organized and called the
U.P. State Electricity Board and are now known as the U.P. State Power
Corporation. The Employers owe their present altered legal existence to a
Notification, dated 14.1.2000, issued under Section 13 of the U.P. Electricity
Reforms Act. It is the further case of the Employers that the Workman raised
an Industrial Dispute by moving the Deputy Labour Commissioner,
Moradabad through an Application under Section 2-A of the U.P. Industrial
Disputes Act, 1947 (for short the ‘Act’). On the basis of the said application,
the Deputy Labour Commissioner, Moradabad Region, Moradabad made a
reference under Section 2-K of the Act, in the following terms (translated
into english from hindi vernacular):
“Whether the act of the Employers in terminating the services of their
workman Mohd. Abrar S/o. Gulzar Ali, Class IV Employee/lineman with
effect from 31.3.1990 is proper and lawful ?

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January 2021 Executive Engineer, Electricity Distribution Division v. 39
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
If not, to what benefit/relief is the Workman entitled, and with what
particulars ?”
5. On the basis of the aforesaid reference Adjudication Case No.57 of
2011 was registered on the file of the Presiding Officer, Labour Court, U.P.
Rampur between Employers and the Workman. It is common ground
between parties that before the Labour Court, both sides put in their Written
Statements and rejoinder statements. Also, that the Employer and the
Workman led their respective evidence, both documentary and oral.
6. The Workman’s case is to the effect that he was retained as a Lineman
by the former U.P. State Electricity Board from 1.1.1978 to 31.5.1978. As a
Workman borne on the muster roll, his services during the said period were
satisfactory. He was retained, as aforesaid, by the Employers in the
Electricity Distribution Division, Chandausi, District Moradabad. He was
detailed to duty at the Electricity Distribution Sub-Division-II, Bilari,
District Moradabad. It is then said by the Workman that from 1.4.1989 to
30.3.1990, he again served the Employers as a Lineman in the Electricity
Distribution Division-Ill. The Workman has put in 240 days during every
year and more of continuous and regular work. The Employers without
adhering to requirements of service of notice Mandatory under the law, have
removed him from service with effect from 31.3.1990. It is further claimed
by the Workman that he has put in a total of 609 days with the Employers as
a Lineman.
7. It is the workman’s further case that other Workmen, junior to him, are
still in service with the Employers. He has substantiated the last plea with
particulars, nominating those junior Workmen retained in service as: (1)
Madhurendra Singh son of Sri Layak Singh, (2) Indrabhan Singh son of Sri
Chandrabhan Singh, (3) Atul Babu son of Sri Ramesh Chandra, besides
others. It is also asserted that the above named Workmen have been retained
in service, though juniors to the Workman, by an Office Memo No.4399/S-1
O.P., dated 17.8.2004 but the Workman was not offered opportunity to join.
To the contrary, the Workman was informed through a Letter, dated
2.5.1999, issued by the Employers that there was a ban on regular
employment, and, that whenever the restriction, as aforesaid, is lifted, he
would be taken back in. It is also said that despite a lapse of a period of 12
years, he has not received any information from the Employers or has he
been called back to work. It is also pleaded that the Petitioner had filed a
Special Appeal before this Court (presumably after losing his Writ Petition
before the learned Single Judge), where this Court, vide Judgment and
Order, dated 30.11.2010, is said to have observed that it is open to the
Workman that like other Workmen, similarly situate, he may also approach
the Labour Court. It is thus, according to that course of action left open to
him by this Court, by the Judgment rendered in Special Appeal aforesaid,

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40 LABOUR LAW NOTES 2021 (1) LLN

that the Petitioner has raised the present Industrial Dispute, asking for
reinstatement together with all consequential benefits.
8. The Employers contested the aforesaid claim by filing their Written
Statement before the Labour Court. A copy of their Written Statement is on
record as Annexure No.2 to this Petition. The stand of the Employers is that
the former U.P. State Electricity Board through their B.O. No.147-G/SC-10-
1979, dated 17.1.1979 had prohibited engagement of Employees in their
establishment, borne on the muster roll. There were further clear instructions
carried in the aforesaid Board Order, that services of all muster roll
Employees be dispensed with and a Seniority List of all such retrenched
Workmen be drawn U.P. It was pleaded that this ban was still in force and
has not been withdrawn by any subsequent order of the Employers.
9. It is the further case of the Employers that upon an inspection of all
available records, including the Seniority List and other records, relating to
muster roll Employees/Workmen, did not show that any Workman going by
the name of Mohd. Abrar son of Gulzar Ali was borne on the muster roll.
There is a plea specifically carried in Paragraph 5 of the Written Statement
of the Employers, to the effect that owing to the ban on employment of
muster roll Employees after January, 1979, the Workman could not have
been engaged as a muster roll Employee after January, 1979. It is then
pleaded that the Workman is put to strict proof about his employment as a
muster roll Employee with the predecessor-Board, or the Employers. It is
then further pleaded that the documents, if any, put in by the Workman
regarding his employment had to be forged and fictitious, drawn up by his
father Gulzar Ali, who was a Lineman with the Employers. It is, particularly,
urged that the Workman has not come forward with clean hands. He has
played fraud with the Court by concealing material facts from the
Conciliation Officer, Moradabad, and also from this Court, in Writ
proceedings that he brought here.
10. It was pleaded that suppressing material facts, the Workman caused
the present reference to be made. About what are those facts that have been
suppressed, it is pointed out by the Employers that the Workman initially
filed a conciliation case before the Conciliation Officer/Assistant Labour
Commissioner, Moradabad in the year 1999, with a plea that he was
appointed on 1.1.1978 and his services were unlawfully terminated on
1.9.1978, while working as a muster roll Employee. This case was filed after
21 years of his alleged termination, alongwith an application for condonation
of delay. The Conciliation Officer, finding that no sufficient cause has been
shown for this inordinate delay, rejected the application for condonation, as
aforesaid, vide Order, dated 11.11.1999, and consigned the case to record.
The Workman did not assail the order of the Conciliation Officer, dated
11.11.1999 by which he declined to make a reference, relative to the
Petitioner’s case regarding unlawful termination of service by the

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January 2021 Executive Engineer, Electricity Distribution Division v. 41
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
Employers, with effect from 1.9.1978. Thus, the aforesaid Order, dated
11.11.1978, declining to make a reference, became final between the parties.
11. It is then pleaded that at this stage, he invoked the jurisdiction of this
Court under Article 226 of the Constitution, and that too, about five years
after the Conciliation Officer declined to make a reference, vide Order, dated
11.11.1999. He brought Civil Misc.W.P. No.22508 of 2004 with a prayer for
the issue of a Mandamus or direction to appoint him as a class IV Employee
on a regular basis. This claim was based on the same cause of action as the
one on the basis of which he unsuccessfully attempted to persuade the
Conciliation Officer to raise an Industrial Dispute. In the Writ Petition, he
did not disclose the proceedings that he had taken under the Act,
unsuccessfully before the Conciliation Officer. Nevertheless, the learned
Judge of this Court dismissed the Writ Petition aforesaid vide Judgment and
Order, dated 10.2.2005, holding that the delay of 14 years has nowhere been
explained. It was also held that working for limited periods in two spells,
does not entitle the Workman to regular employment in the establishment of
the Employers. It was also held that the Workman has an alternative remedy
to raise an Industrial Dispute.
12. It is submitted by the learned Counsel for the Petitioner that this
finding of the learned Judge clearly shows that the fact that the Workman
had earlier invoked his remedy unsuccessfully under the Act, was suppressed
in the Writ Petition. The Workman assailed the Order of the learned Single
Judge through a Special Appeal being Special Appeal No.405 of 2005,
which too came to be dismissed vide Judgment and Order, dated 30.11.2010.
However, in the Judgment rendered in Appeal, their Lordships of the
Division Bench remarked that looking to the controversy involved, it is a
case that requires adjudication on the basis of oral and documentary
evidence for which the Labour Court was the appropriate forum, also
noticing there that thirteen Employees who were working alongwith the
Workman, had already approached the Labour Court. It is pleaded that
taking cue from this observation of their Lordships of the Division Bench,
the Workman once again switched back to the Forum under the Act. On
occasion, he moved an Application under Section 2-A of the Act before the
Conciliation Officer, Moradabad that was registered as Case No.14 of 2011.
Here, he came up with a case of termination based on a new date, that is to
say, 31.3.1990. He is said to have suppressed the fact from the Conciliation
Officer that he had earlier applied for a reference of his claim based on the
first spell of engagement, ending on 1.9.1978 and had failed before the
Conciliation Officer on 11.11.1999, an order that he never challenged. The
Workman was successful in persuading the Conciliation Officer to make a
reference to the Labour Court this time, where in the present Adjudication
Case, the impugned Award, has been rendered. The Labour Court, in
adjudicating the dispute, after elaborately setting out the case of parties and
the evidence which they have relied, besides a paraphrased account of their

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42 LABOUR LAW NOTES 2021 (1) LLN

respective submissions, went into the evidence of the Employer’s Witness,

Prabhakar Singh. It is remarked about this Witness that he acknowledged in
his cross-examination that from 1.3.1978 to 31.3.1990 he was not posted as
the Executive Engineer. It is further noticed that he had said that he did not
file a list of muster roll Employees, removed in the year 1979. It is remarked
by the Labour Court that this fact that he did not file a copy of the removed
muster roll Employees of the year 1979, makes it clear that the Workman’s
name would be there in that list. It is also remarked by the Labour Court that
the Workman has filed a Certificate of service from January 1978 to
31.8.1978, which he has proved but the Sub-Divisional Officer, in his
deposition in Court, has not dispelled the same. It is also recorded by the
Labour Court that the Workman has proved his Certificate of service from
1.4.1989 to 31.3.1990, issued by the then Sub-Divisional Officer, B.P.
Singh, which too has not been refuted or dispelled by the Sub-Divisional
Officer in his deposition in the Witness Box.
13. It is also recorded by the Labour Court that the Workman has also
proved by his testimony in Court, a letter written by his learned Counsel to
the Executive Engineer, Chandausi, Moradabad that was in the form of a
questionnaire, and on record, marked Ex.W5. In relation to this document,
the Labour Court has observed that in this questionnaire it has been
acknowledged that other Workman circumstanced as the Workman, have
been re-employed with effect from 17.8.2004. The Labour Court has drawn
an inference here to conclude that this fact shows that the services of the
Workman have been terminated in an unlawful manner.
14. The Labour Court has recorded a further finding to the effect that the
workmen junior to the present Workman are still in employment. The
Labour Court has then taken note of a document marked as Ex.E2, proved by
the Employers Witness, about which the Witness has said that the document
carries the name of one Mohd. Akhtar, but does not mention the name of the
workman (Mohd. Abrar). The Labour Court has moved on to remark that the
Workman’s document, Ex.W2, the Certificate of service issued by the Sub
Divisional Officer, B.P. Singh indicates that the Workman had remained in
employment from 1.4.1989 to 31.3.1990. From this, again the Labour Court
has concluded, that it goes to show that the Workman had put in 240 days or
more of service.
15. A further finding is recorded that before he was removed, the
Workman was not served with notice as required by the law or Wages in lieu
of notice or Retrenchment Compensation. The Labour Court concludes that
in these circumstances, the Workman was entitled to be reinstated with
continuity in service and Back Wages. It is this award, which the Employers
seek to assail through the present Petition.
16. Ms. Usha Kiran, learned Counsel for the Petitioner submits that the
impugned Award passed by the Labour Court is based on perverse

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January 2021 Executive Engineer, Electricity Distribution Division v. 43
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
conclusions drawn from the evidence on record, or conclusions that are
entirely misdirected. It is submitted that the finding regarding juniors to the
Workman being retained in service ignores from consideration material
evidence, which is to the effect that the men, who have been reengaged, vide
Order, dated 17.8.2004 have been so permitted in compliance of an Interim
Order of this Court, passed in their favour, in Civil Misc. Writ Petition No.
55554 of 2003, dated 17.12.2003. She submits that the impugned Award,
does not at all take this feature into account. It is her contention that in case
the Labour Court had taken due note of the Interim Order of this Court,
passed in favour of three other Workmen, dated 17.8.2004, be they junior or
not to the Workman, the Labour Court would have concluded to the
contrary. It is so as no rights can be based on a plea of discrimination, drawn
on the basis of an act that is done in compliance of a judicial order. It is
further argued on behalf of the Petitioner that the finding of the Labour
Court that Ex.E2 issued by the then S.D.O., which mentions name of a
certain Workman called Mohd. Akhtar, actually bears reference to the
Workman (Mohd. Abrar), is a perverse finding that has no basis to it. It is
further submitted that there is absolutely no record or other evidence to show
that the Workman indeed worked as a muster roll Employee from 1.4.1989
to 13.3.1990, completing 240 days and more of service in a year, so as to
entitle him to the benefit of Section 6-N of the Act.
17. The Labour Court, in particular, ignored from consideration the fact
that according to the Workman’s case, he worked in two spells, one from
1.1.1978 to 31.8.1978, and, in the second spell, from 1.4.1989 to 31.3.1990;
and that basing his claim on the earlier period of engagement from 1.1.1979
to 31.8.1978, he had approached the Conciliation Officer in the year 1999,
under Section 2-A of the Act, seeking to raise an Industrial Dispute, which
has been declined by the Conciliation Officer vide Order, dated 11.11.1989,
holding it to be highly belated, and one made after 21 years.
18. Learned Counsel for the Employers has also pointed out that after
attempting to seek a remedy before this Court on the Writ side, and failing in
that endeavour, the present application has been made to the Conciliation
Officer, leading to the reference, now in hand. It includes the two different
periods of engagement claimed by the Workman, as the basis of raising a
dispute, that is to say, the period from 1.1.1978 to 31.8.1978 & 1.4.1989 to
31.3.1990, where he had concealed his earlier failure, with regard to the
period of his claim, based on engagement in the year 1978.
19. Learned Counsel for the Employers also pointed out that when the
Workman first approached the Conciliation Officer seeking to raise an
Industrial Dispute, both periods of engagement, that have been alleged, now
on the second application under Section 2-A of the Act, were available, but
in the first application, engagement in the year 1978 alone was made basis to
raise the dispute. This according to Ms. Usha Kiran, learned Counsel for the

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44 LABOUR LAW NOTES 2021 (1) LLN

Employers shows that the subsequent claim put forward in the second
application, and also in Writ proceedings before this Court, is a claim that is
based on fabrication with not a grain of truth to it. It is for this reason that
the Workman could not produce any evidence about either of the two
stretches of time, during which he claims to have worked for the Employers.
It is for the same reason that in all the relevant documents available with the
Employers’ establishment, that have been examined by them, and produced
in Court, the name of the Workman does not figure. It is submitted by her
that these aspects have been completely overlooked by the Labour Court
while rendering the impugned Award. It is also argued by Ms. Usha Kiran
that apart from all other facts, the workman’s claim, on admitted facts,
relates to a termination dating back to 31.3.1990, and the Application under
Section 2-A of the Act seeking to raise the Industrial Dispute was made in
the year 2011, that is to say, after a period of 21 years. This makes the
Workman’s claim ex facie stale where it is difficult to say whether any
Industrial Dispute, indeed, survives, if at all ever there was one. The Labour
Court has not at all bestowed consideration to the aforesaid feature about the
Workman’s case, which according to the learned Counsel for the Employers,
if considered, might have led him to discard the Workman’s claim on ground
of being highly belated and stale.
20. Sri Dilip Kumar Yadav, learned Counsel appearing for the Workman
refuting the submissions made on behalf of the Employers has come up with
a case that the Workman was engaged from 1.1.1978 to 31.8.1978 as a
lineman, borne on the muster roll. He was given a Certificate of service for
that period, which accounts more than 243 days where he performed well,
and was appreciated. Thereafter, he was again re-engaged for the same work
of a lineman from 1.4.1989 to 31.3.1990 in the Vidyut Vitran Khand,
Moradabad. For this stint of his engagement, he was issued a Certificate by
the S.D.O.-III, of which the Labour Court has taken due note in the
impugned Award. The Labour Court has found it to be a validly proved
document by the work-man in his evidence, which the Employers Witnesses
have not dispelled.
21. Learned Counsel for the Workman submits that these are findings of
fact recorded by the Labour Court, in which this Court in exercise of its
powers under Article 226, or for that matter 227, cannot interfere. It is
submitted that the Labour Court has found for a fact that the services of the
workman were terminated in breach of the procedure prescribed under the
Act, without service of notice for the requisite period, or paying him Wages
for the period of notice as required by law, rendering the termination of his
services unlawful. The said finding also is based on the edifice of the earlier
finding regarding the Workman’s engagement from 1.4.1978 to 31.8.1978,
that far exceeds 240 days; it is also, therefore, a finding of fact, which cannot
be disturbed by this Court. He has also urged that similarly circumstanced
Workmen, to wit, Rajesh Kumar, Mahendra Singh, Indrapal Singh and Atul

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January 2021 Executive Engineer, Electricity Distribution Division v. 45
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
Babu, who were also removed like the Workman, have been reinstated in
service by an order of the Executive Engineer, Electricity Distribution
Division, Chandausi, District Moradabad, dated 17.1.2004, but the
Employers have not reinstated the Workman in like manner. According to
the learned Counsel for the Workman, this amounts to hostile discrimination
between similarly circumstanced Workmen, by the Employers, who are after
all, the State.
22. Learned Counsel for the Employers has come up with a plea that the
earlier application moved before the Conciliation Officer, that was rejected
vide Order, dated 11.11.1999 by the Conciliation Officer/Assistant Labour
Commissioner, was not made by him. He had not filed any application prior
to Case No.57 of 2011 before the Conciliation Officer, that was decided in
his favour on 25.9.2011.
23. In the next breadth, learned Counsel for the Workman says that it is
true that the Workman had erroneously moved the Assistant Labour
Commissioner, Moradabad instead of moving the Labour Court, U.P. at
Rampur, but that application was illegally dismissed on ground of laches.
The order there was never communicated to the Workman. About the delay
in the matter of approaching the Labour Court, Sri Dilip Kumar Yadav,
learned Counsel for the Workman says that delay in itself is no disentitling
parameter. He has placed reliance in support of the aforesaid contention of
his on a decision of the Supreme Court in Chief Engineer, Ranjit Sagar
Dam and another v. Sham Lal, 2006 (9) SCC 124, where on the issue of
delay in raising an Industrial Dispute, it has been held by their Lordships
thus:
“9. So far as delay in seeking the reference is concerned, no formula of universal
application can be laid down. It would depend on the facts of each individual
case.
10. However, certain observations made by this Court need to be noted. In
Nedungadi Bank Ltd. v. K.P. Madhavankutty, 2000 (2) SCC 455 : 2000 SCC (L
& S) 283, it was noted at Para 6 as follows: (SCC pp. 459-60)
“6. 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 a lapse of about seven years of the order
dismissing the Respondent from service. At the 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

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46 LABOUR LAW NOTES 2021 (1) LLN

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
an Industrial Dispute was ex facie bad and incompetent.”
11. In S.M. Nilajkar v. Telecom District Manager, 2003 (4) SCC 27 : 2003 SCC
(L & S) 380, the position was reiterated as follows (SCC at pp. 39-40, Para 17):
“17. It was submitted on behalf of the Respondent that on account of delay in
raising the dispute by the Appellants the High Court was justified in denying
relief to the Appellants. We cannot agree. It is true, as held in Shalimar Works
Ltd. v. Workmen. 1960 (1) SCR 150 : AIR 1959 SC 1217, that merely because
the Industrial Disputes Act does not provide for a limitation for raising the
dispute, it does not mean that the dispute can be raised at any time and without
regard to the delay and reasons therefor. There is no limitation prescribed for
reference of disputes to an Industrial Tribunal; even so it is only reasonable
that the disputes should be referred as soon as possible after they have arisen
and after conciliation proceedings have failed, particularly so when disputes
relate to discharge of Workmen wholesale. A delay of 4 years in raising the
dispute after even re-employment of most of the old Workmen was held to be
fatal in Shalimar Works Ltd. v. Workmen, 1960 (1) SCR 150 : AIR 1959 SC
1217. In Nedungadi Bank Ltd. v. K.P. Madhavankutty, 2000 (2) SCC 455 :
2000 SCC (L & S) 283, a delay of 7 years was held to be fatal and disentitled
the workmen to any relief. In Batan Chandra Sammanta v. Union of India
1993 Supp (4) SCC 67 : 1994 SCC (L & S) 182 : 1994 (26) ATC 228] it was
held that a Casual Labourer retrenched by the Employer deprives himself of
remedy available in law by delay itself; lapse of time results in losing the
remedy and the right as well. The delay would certainly be fatal if it has
resulted in material evidence relevant to adjudication being lost and rendered
not available. However, we do not think that the delay in the case at hand has
been so culpable as to disentitle the Appellants to any relief. Although the High
Court has opined that there was a delay of 7 to 9 years in raising the dispute
before the Tribunal but we find the High Court factually not correct. The
employment of the Appellants was terminated some time in 1985-86 or 1986-
87. Pursuant to the Judgment in Daily Rated Casual Labour v. Union of India,
1988 (1) SCC 122 : 1988 SCC ( L& S) 138 : 1987 (5) ATC 228, the
Department was formulating a scheme to accommodate Casual Labourers and
the Appellants were justified in awaiting the outcome thereof. On 16.1.1990
they were refused to be accommodated in the Scheme. On 28.12.1990 they
initiated the proceedings under the Industrial Disputes Act followed by
conciliation proceedings and then the dispute was referred to the Industrial
Tribunal-cum-Labour Court. We do not think that the Appellants deserve to be
non-suited on the ground of delay.”
The above position was highlighted recently in Sudamdih Colliery of Bharat
Coking Coal Ltd. v. Workmen, 2006 (2) SCC 329 : 2006 SCC L & S 306 : 2006
(1) Supreme 282.”
24. A careful examination of the matter does indicate that the present
reference, where the Industrial Dispute was raised in the year 2011 through

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January 2021 Executive Engineer, Electricity Distribution Division v. 47
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
an application made to the Conciliation Officer by the Workman, relates to a
termination of services made on 31.3.1990, going by the terms of the
reference and nothing more. More or less, reckoned from the latter of the
two stints that the Workman had, in the Employers establishment as a muster
roll borne lineman, the dispute has been raised after a delay of 21 years. It is
true that going by the law, no limitation is prescribed, but stale claims where
the Industrial Dispute may no longer actually exist, would be something
upon which the law would frown. It is trite to say that what time period
would constitute disentitling delay, would depend on the facts and
circumstances of each case, as indicated in the decision of the Supreme
Court in Chief Engineer, Ranjit Sagar Dam and another (supra). But, delay
is certainly a very relevant factor to be considered by the Labour Court, in
cases that are brought after lapse of a relatively long period of time, going by
the short period of human life, and the still shorter productive period of it.
The two decisions of their Lordships of the Supreme Court, that have been
referred to with approval in Chief Engineer, Ranjit Sagar Dam and another
(supra), are eloquent on various facets how delay would work to bar stale
claims, notwithstanding the fact that a specified period of limitation is not
prescribed by the statute to raise an Industrial Dispute. Various factors that
have to be taken into consideration, are well illustrated there, and serve as a
guiding hand in various matters where the issue arises.
25. Again, the Supreme Court in Kuldeep Singh v. Instrument Design
Development & Facilities Centre, 2011 (1) LLN 1 (SC) : 2010 (14) SCC
176, following two earlier decisions of their Lordships in Sapan Kumar
Pandit v. U.P. State Electricity Board and others, 2001 (3) LLN 861 (SC) :
2001 (6) SCC 222 and a three Judge Bench of their Lordships in Western
India Match Co. Ltd. v. Western India Match Co. Workers Union and
others, 1970 (1) SCC 225, that had been followed in Sapan Kumar Pandit
(supra) held on the question of stale Industrial Disputes in Kuldeep Singh
(supra), thus:
“30. In view of the above, law can be summarised that there is no prescribed
time-limit for the appropriate Government to exercise its powers under Section
10 of the Act. It is more so in view of the language used, namely, if any
Industrial Dispute exists or is apprehended, the appropriate Government “at any
time” refer the dispute to a board or Court for Enquiry. The reference sought for
by the Workman cannot be said to be delayed or suffering from a lapse when law
does not prescribe any period of limitation for raising a dispute under Section 10
of the Act. The real test for making a reference is whether at the time of the
reference dispute exists or not and when it is made it is presumed that the State
Government is satisfied with the ingredients of the provision, hence the Labour
Court cannot go behind the reference.
31. It is not open to the Government to go into the merit of the dispute concerned
and once it is found that an Industrial Dispute exists then it is incumbent on the
part of the Government to make reference. It cannot itself decide the merit of the
dispute and it is for the appropriate Court or forum to decide the same. The

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48 LABOUR LAW NOTES 2021 (1) LLN

satisfaction of the appropriate authority in the matter of making reference under

Section 10(1) of the Act is a subjective satisfaction. Normally, the Government
cannot decline to make reference for laches committed by the Workman. If
adequate reasons are shown, the Government is bound to refer the dispute to the
appropriate Court or forum for adjudication.
32. Even though, there is no limitation prescribed for reference of dispute to the
Labour Court/Industrial Tribunal, even so, it is only reasonable that the disputes
should be referred as soon as possible after they have arisen and after
conciliation proceedings have failed, particularly, when disputes relate to
discharge of Workman. If sufficient materials are not put forth for the enormous
delay, it would certainly be fatal. However, in view of the explanation offered by
the Workman, in the case on hand, as stated and discussed by us in the earlier
Paragraphs, we do not think that the delay in the case on hand has been so
culpable as to disentitle him any relief. We are also satisfied that in view of the
details furnished and the explanation offered, the Workman cannot be blamed for
the delay and he was all along hoping that one day his grievance would be
considered by the Management or by the State Government.
(Emphasis by Court)
26. A perusal of the impugned Award in this case would show that the
Labour Court, before whom this plea about the grossly belated claim had
been raised vide Paragraph 14 of the Written Statement, did not at all advert
to the aforesaid aspect, that indeed was required to be addressed by the
Labour Court looking to the 21 years that stood between the date of
termination from service of the Workman and the time when the Industrial
Dispute was raised, leading to the adjudication case before the Labour Court.
If it had been only this issue about non-examination of the plea regarding the
prima facie stale Industrial Dispute, which the Labour Court has failed to
examine, it would have merited a remand of the matter to the Labour Court,
and nothing more. But, here there are other issues to which the attention of
the Labour Court has been drawn, and conclusions reached one way about
those.
27. Most important of these is the fact that the Workman has suppressed
from the Conciliation Officer, when he made the present reference, and also
from the Labour Court, the fact that the Workman had earlier moved the
Conciliation Officer in the year 1999, under Section 2-A of the Act, where
he had cited the period of his engagement with the Employers as 1.1.1978 to
31.8.1978. There, he had mentioned that his services were unlawfully
terminated on 1.9.1978, and that he was borne on the muster roll during the
period of his retention by the Employers. There is on record a Memo, dated
9.12.1999, which indicates that the aforesaid reference was declined as time
barred by the Conciliation Officer vide an Order, dated 5.7.1999 (the
Employer has indicated that date to be 11.11.1999 in the Writ Petition and
elsewhere). The letter of the Conciliation Officer-cum-Assistant Labour
Commissioner, Moradabad, is on record as Annexure No.4 to the Writ
Petition. There is also on record a detailed note submitted by the

Labour Law Notes / January-2021

January 2021 Executive Engineer, Electricity Distribution Division v. 49
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
Conciliation Officer, dated 11.11.1999 to the Deputy Labour Commissioner
bearing a detailed reference to the case put up before him for conciliation
and requesting a reference of an Industrial Dispute to be made, that he found
to be stale with a delay of 21 years. A perusal of the said report dated
11.11.1999, that has been referred to by the Employers as an order, indicates
that the matter was submitted for approval to the Deputy Labour
Commissioner, who was, to all seeming, the Authority, delegated with
powers to make a reference under Section 4-K of the Act by the State
Government. The Orders passed by the Conciliation Officer on 5.7.1999,
and submitted to the Deputy Labour Commissioner for approval on
11.11.1999, which in due course, must be presumed to have been approved,
were not challenged anywhere by the Workman, and attained finality.
28. In between, the Workman also tried to secure relief in substance,
directed to ensure his reinstatement by the Employers through Civil Misc.
Writ Petition No.22508 of 2004, that came to be dismissed vide Order, dated
10.2.2005. A Special Appeal from the said order of the learned Single Judge
being Special Appeal No.405 of 2005, was also dismissed by the Division
Bench, vide Judgment and Order, dated 30.11.2010. At this juncture, the
Workman in the following year, that is to say 2011, suppressing all
proceedings earlier taken before the Conciliation Officer in the year 1999,
unsuccessfully to secure a reference of the Industrial Dispute to adjudication,
and also all proceedings taken before this Court on the Writ side, moved the
Conciliation Officer again through an Application under Section 2-A of the
Act. The application made under Section 2-A of the Act in the year 2011, on
the basis of which the present reference has been made, is on record as
Annexure No.1 to the Writ Petition. It does not show anywhere even the
slightest reference to the earlier efforts in the year 1999 before the
Conciliation Officer, made by the Workman unsuccessfully to secure a
reference, and also before this Court on the Writ side to seek relief of
reinstatement in service, again unsuccessfully.
29. The suppression of these facts constitute material, which if there
before the State Government or its delegate, who exercised power to make
the present reference under Section 4-K of the Act, in strong probability,
would have swayed the subjective satisfaction of the Authority the other
way. This plea about suppression of this fact of an earlier failed attempt to
secure a reference was eloquently raised by the Employers in their Written
Statement, vide Paragraphs 8, 9, 10, 11, 12 & 13 thereof, which is on record
of the Writ Petition, as Annexure No.2. A perusal of the impugned Award,
however, shows that the Labour Court has not at all looked into the aforesaid
plea, about which there is evidence as well, documentary in nature, filed
before it, to show that the present reference arose in consequence of the
Workman seeking it a second time on almost the same facts, and suppressing
the result of earlier proceedings before the Referring Authority. The Labour
Court, has given a short shift to this plea and all the evidence in support of it,

Labour Law Notes / January-2021

50 LABOUR LAW NOTES 2021 (1) LLN

that has remained absolutely unconsidered by it while rendering the

impugned Award.
30. Much more on the substantial side of it is one striking feature, that
cannot be lost sight of. A perusal of the report submitted by the Conciliation
Officer-cum-Assistant Labour Commissioner, dated 11.11.1999 to the
Deputy Labour Commissioner for the approval of its order proposing
rejection of the Workman’s claim to a reference of the Industrial Dispute
shows that in the earlier application seeking a reference, the period of
engagement mentioned by the Workman as a muster roll Employee is
1.1.1978 to 31.8.1978, the date of unlawful termination mentioned being
1.9.1978. This Application under Section 2-A of the Act was made in the
year 1999. Now, in the present application, that has been made a second
time, almost on the same facts, there is an added period of claimed service
rendered by the Workman with the Employers on the muster roll, that was
allegedly the time between 1.4.1989 to 31.3.1990. Again, in the present
application, it has been made different to be a case of working for the
Employers in two stints, one from 1.1.1978 to 31.8.1978, and subsequently
from 1.4.1989 to 31.3.1990. Peculiarly, there is no mention of this period of
retention/engagement by the Employers from 1.4.1989 to 31.3.1990 by the
Workman in his earlier application made to the Conciliation Officer in the
year 1999 seeking to raise an Industrial Dispute. If the Workman had,
indeed, worked in two stints as he now claims, there is no reason why in the
year 1999 the Workman would not have put forth a claim based on the
second stint from 1.4.1989 to 31.3.1990. This omission in the first
application made to the Conciliation Officer is so telltale, that it leaves no
manner of doubt in this Court’s mind that the Workman’s case is founded on
utter falsehood apparent on record. The Labour Court in ignoring this fact
has committed a manifest error of law.
31. There is one strange finding, of course, manifestly illegal, that the
Labour Court has recorded. It is about the Employers’ documents exhibited
as Ex.E2, that appears to be the list of retrenched Employees on the muster
roll. In relation to the said document, the Labour Court has referred to the
testimony of an Employers’ Witness, who appeared to prove the document,
and stated that in the said document the name of one Mohd. Akhtar figures,
but not of Mohd. Abrar. The Labour Court has remarked about it that the
said document, which mentions the name of Mohd. Akhtar, in fact relates to
the Workman, Mohd. Abrar, which corroborates the Certificate of service
issued to him by the S.D.O., B.P. Singh for the period 1.4.1989 to 31.3.1990.
This Certificate has been challenged as a forged document by the
Employers. The question of forgery apart, there is absolutely no reasoning
behind the inference of the Labour Court that the name of Mohd. Akhtar
which figures in the document Ex.E2, refers to the Workman, Mohd. Abrar.
The said finding is no more than the most wild conjecture. In the opinion of
this Court, the said finding is manifestly illegal, also.

Labour Law Notes / January-2021

January 2021 Executive Engineer, Electricity Distribution Division v. 51
Presiding Officer, Labour Court, Rampur (All.) (Jahangir Jamshed Munir, J.)
32. The Labour Court has also recorded a finding inferring illegal
termination of the Workman’s services from the fact that in answer to a letter
from the Workman’s Counsel to the Employers/Executive Engineer,
Chandausi, Moradabad, about reinstatement of similarly circumstanced
named Workmen, the Employers have acknowledged through a Memo,
dated 17.8.2004, that they have been reinstated. Now, about this finding, it
has been pointed out that the Workmen under reference have been reinstated
under a judicial order, being an Interim Order passed by this Court, dated
17.12.2003 in Civil Misc.W.P. No.55554 of 2003. This fact has been
specifically mentioned in Paragraph 25 of the Writ Petition, about which
there is an evasive denial in Paragraph 16 of the Counter Affidavit, which
reads thus:
“16. That the contents of Paragraphs 25 & 26 of the Writ Petition are not correct,
hence denied.”
The finding of the Labour, therefore, that similarly circumstanced
Workmen have been reinstated in service, is absolutely without basis,
inasmuch as, reinstatement in that case is founded on a Judicial Order passed
by this Court in a Writ Petition. No plea of discrimination or differential
treatment by the Workman can be raised where the Employers have acted to
reinstate some other Workmen, claimed to be similarly situate, in
compliance of a judicial order. That is no act of the Employers. The case of
the Workman is inherently unbelievable and incredible which the Labour
Court ought to have noticed.
33. It is well-settled that an award of the Labour Court, that is perverse or
manifestly illegal, ought to be quashed by this Court in exercise of its
jurisdiction under Article 226 of the Constitution.
34. The present case squarely falls in the category where the award has
been rendered drawing perverse conclusions from evidence on record,
ignoring material evidence and looking into irrelevant evidence. In the
background also, there is this unignorable plea of a stale claim, that has been
raised after 21 years with no explanation forthcoming on the Workman’s
part. The explanation, if at all there is one, is all about the Workman
invoking remedies earlier to the same end unsuccessfully; a fact that he has
suppressed from the inception of these proceedings.
35. Under the circumstances, the Award apart from being manifestly
illegal, is also liable to be quashed in the interest of justice.
36. In the result, the Writ Petition succeeds and is allowed with Costs.
The impugned Award, dated 25.9.2013 (published on 15.4.2014) passed in
Adjudication Case No.57 of 2011 by the Presiding Officer, Labour Court,
Uttar Pradesh, Rampur, is hereby quashed.
  

Labour Law Notes / January-2021

52 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 52 (All.)

IN THE HIGH COURT OF ALLAHABAD
Jahangir Jamshed Munir, J.
C.Misc. W.P. No.1302 of 2018
11.7.2019
U.P. Financial Corporation .....Petitioner
Vs.
Appellate Authority under Payment of Gratuity Act and others. .....Respondents
PAYMENT OF GRATUITY ACT, 1972 (39 of 1972), Sections 2(s), 4(1),
4(2) & 14 — ‘Wages’ — Definition — ‘Interim relief’ — Whether Wages
for purpose of calculation of Gratuity — Payment of Gratuity —
Overriding effect of Act — Third Respondent employed with Petitioner
retired under Voluntary Retirement Scheme (VRS) — Gratuity
calculated taking into account Basic Pay and Dearness Allowance — `800
per month drawn as Interim Relief not been included while calculating
Gratuity — Application filed before Controlling Authority under Act,
was allowed — On Appeal by Petitioner, Appellate Authority dismissed
Appeal — On challenge, held, scheme of VRS no more than a Contract
framed under policy of Petitioners, would be subservient to Act and a
fortiori to rights of Employee to receive Gratuity as per provisions of
Act — As held in A.K. Bindal v. UoI, 2003 (5) SCC 163, right to receive
other emoluments after accepting retirement under VRS cannot be
compared with Statutory entitlement at rate prescribed under Act — It
would be in interest of both Employer and Employee that calculation of
Gratuity which forms part of VRS be always done in accordance with
provisions of Act — Interim Relief claimed by Employee to be part of
his ‘Wages’ for reckoning his Wages last drawn at time of retirement
under VRS — Authorities below did not commit any manifest error of
law in including Interim Relief to figure of Wages last drawn by Third
Respondent — There is little difference in retirement on
Superannuation or otherwise as evident from provisions of Section 4(1)
— Resignation, a contingency, which after five years of more of
continuous service would entitle Employee to Gratuity under Act —
Findings of Controlling Authority and Appellate Authority, may be for
different or added reasons, are unassailable — Writ Petition dismissed
with Costs — Amount of Gratuity deposited with Controlling Authority
directed to be paid within 15 days. (Paras 13, 14, 18, 22 to 27)
CASES REFERRED
A.K. Bindal v. Union of India, 2003 (5) SCC 163................................................... 9, 11, 13, 14
Nagar Ayukt, Nagar Nigam, Kanpur v. Mujib Ulla Khan, MANU/UP/1981/2007..................12

Labour Law Notes / January-2021

January 2021 U.P. Financial Corporation v. Appellate Authority under 53
Payment of Gratuity Act (All.) (Jahangir Jamshed Munir, J.)
Ateeq Ahmad Khan, Advocate for Petitioner.
C.S.C. and Ranjeet Kumar Mishra, Advocate for Respondents.
Finding — W.P. dismissed with costs.
JUDGMENT
1. The question involved in this Writ Petition is: whether interim relief
being paid to an Employee immediately before his retirement would fall
within the meaning of ‘Wages’ defined under Section 25 of the Payment of
Gratuity Act, 1972 for the purpose of calculation of his gratuity, under
Section 4(2) ?
2. The Third Respondent was employed with the Petitioner-Corporation
in the month of December, 1972 and retired voluntarily from service in the
month of July, 2005. He opted to retire under the Voluntary Retirement
Scheme offered by the Corporation (for short the ‘VRS’). At the time of his
retirement in the month of July, 2005 Respondent No.3 held the post of
Assistant Manager (Finance) with the Petitioner-Corporation.
3. The case of the Petitioner in short is that at the time of his Voluntary
Retirement, he was paid gratuity that was calculated taking into
consideration his basic pay + dearness allowance. However, a sum of `800
per month that he was in receipt of at that time, by way of interim relief, was
not included in his wages last drawn for the purpose of calculation of his
gratuity. Respondent No.3, admittedly rendered 32 years of service and
taking the said Respondent’s Wages last drawn to be his basic pay at the
time, that is a sum of `3,500 per month + dearness allowance, that at the
relevant time was at sum of `10,606, his Wages last drawn were determined
at a figure of `14,106. In whatever manner gratuity was calculated, the
Petitioner-Corporation reckoned the sum payable to the Third Respondent in
gratuity at a figure of `2,22,222. This figure in whatever manner calculated
by the Petitioner according to their rules, and not in accordance with the
Payment of Gratuity Act, 1972 (for short the ‘Act’), did not take into
reckoning a sum of `800 per month, that Respondent No.3 received by way
of interim relief.
4. Aggrieved, the Third Respondent moved an application to the
Controlling Authority, Payment of Gratuity Act (for short the ‘Controlling
Authority’), dated 10.5.2012, in substance claiming that he was entitled to
receive gratuity in accordance with Section 4(2) of the Act, where the sum of
interim relief that he was receiving as part of his Wages last drawn, is
required to be included while determining the gratuity payable. It was
claimed that including the sum of interim relief that the Third Respondent
was in receipt of when he retired, gratuity payable to him would workout to
a figure of `2,83,787. Thus, deducting the sum of `2,29,222 paid to the
Third Respondent at the time of his Voluntary Retirement in gratuity, a

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54 LABOUR LAW NOTES 2021 (1) LLN

balance of `54,565 is still outstanding, that he is entitled to receive from the

Petitioners under Section 4(2) of the Act.
5. The aforesaid application was registered before the Controlling
Authority as PG Case No.57 of 2012. A reply, dated 5.12.2012, signed by
the Chief Manager, Law Department, of the Petitioner was filed in
opposition to the Third Respondent’s claim. A further reply, dated 15.5.2013
was filed on behalf of the Petitioner. A rejoinder was filed on behalf of the
Third Respondent, reiterating his claim about entitlement to difference in the
sum of gratuity payable to him, in accordance with Section 4(2) of the Act.
The Controlling Authority allowed the Petitioner’s application vide Order,
dated 18.1.2016, calculating the gratuity payable, by including the sum of
interim relief for the purpose of reckoning wages last drawn by the Third
Respondent and determining the same at a figure of `2,83,787, in accordance
with the provisions of Section 4(2) of the Act, read with Rule 10(1) of the
U.P. Payment of Gratuity Rules, 1975 (for short the ‘Rules’).
6. The Petitioners preferred an Appeal from the aforesaid order to the
Appellate Authority under the Act, invoking the provisions of Section 7(7)
and praying that the order of the Controlling Authority, dated 18.1.2016 be
set aside. The aforesaid Appeal was heard and dismissed by the Appellate
Authority, vide its Order, dated 11.10.2017.
7. Aggrieved, the present Writ Petition has been filed.
8. Heard Sri Mohd. Saleem Khan, learned Counsel for the Petitioner, Sri
Ranjeet Kumar Mishra, learned Counsel appearing for Respondent No.3, and
Sri Sandeep Kumar, learned Counsel appearing on behalf of Respondent
No.1.
9. A reading of the case as urged by the Petitioners before the authorities
below, shows that there is no issue about the fact that the Act is applicable to
the Petitioner’s establishment. The thrust of the Petitioner’s submission is
two fold. The first is that the Petitioner having accepted the Voluntary
Retirement Scheme, and accepted terminal benefits under the said scheme,
he has no further right to claim any sum of money on any count whatsoever,
including gratuity payable under the Act. Learned Counsel for the Petitioner
submits that acceptance of retirement under a Voluntarily Retirement
Scheme is a ‘take it or a leave it’ offer, where whatever is offered by the
Employer under the scheme, if accepted, bars all claims to pay revision or
higher wages, which the Employee may be otherwise entitled under the
Rules. In this regard, learned Counsel for the Petitioner has relied upon the
decision of the Supreme Court in A.K. Bindal and another v. Union of
India and others, 2003 (5) SCC 163, where it has been held thus:
“34. This shows that a considerable amount is to be paid to an Employee ex
gratia besides the terminal benefits in case he opts for Voluntary Retirement
under the Scheme and his option is accepted. The amount is paid not for doing

Labour Law Notes / January-2021

January 2021 U.P. Financial Corporation v. Appellate Authority under 55
Payment of Gratuity Act (All.) (Jahangir Jamshed Munir, J.)
any work or rendering any service. It is paid in lieu of the Employee himself
leaving the services of the Company or the industrial establishment and
foregoing all his claims or rights in the same. It is a package deal of give and
take. That is why in the business world it is known as “golden handshake”. The
main purpose of paying this amount is to bring about a complete cessation of the
jural relationship between the Employer and the Employee. After the amount is
paid and the Employee ceases to be under the employment of the Company or
the undertaking, he leaves with all his rights and there is no question of his again
agitating for any kind of his past rights with his erstwhile Employer including
making any claim with regard to enhancement of Pay-Scale for an earlier period.
If the Employee is still permitted to raise a grievance regarding enhancement of
Pay-Scale from a retrospective date, even after he has opted for Voluntary
Retirement Scheme and has accepted the amount paid to him, the whole purpose
of introducing the Scheme would be totally frustrated.”
10. Learned Counsel for the Petitioner submits that a reading of the
aforesaid principle makes it clear that once an Employee accepts to quit
employment under the VRS, all that he is entitled to receive is whatever is
part of that scheme. The VRS is a complete severance of all relationship and
obligations between the Employer and Employee, and it comes subject to
whatever is offered in remuneration as part of the VRS. He submits,
therefore, that the Petitioner is not entitled to rely upon the statutory fixation
of gratuity under the Act, to which he would be entitled, in case he retired on
attaining the age of superannuation. According to Sri Salim Ahmad Khan,
learned Counsel for the Petitioner, reckoning of gratuity under the Act is an
anathema to the concept of VRS, which is complete in all quantification of
rights and obligations that are contracted by an Employee, opting to retire
under the said scheme.
11. Sri Sandeep Kumar Mishra has disputed the aforesaid proposition and
submits that the liability of the Employer to pay gratuity, governed by
Section 4(2) of the Act cannot be defeated on the basis of attaching to the
VRS an overshadowing effect, upon the statutory rights of the Employee. He
submits that the decision of their Lordships in A.K. Bindal and another
(supra) is clearly distinguishable, as that did not relate to payment of
gratuity.
12. This Court has considered the aforesaid submission with all the
attention that it deserves. The VRS that may be an initiative in furtherance of
a policy of the Petitioner, is after all a scheme under which an Employee is
given an offer to retire, subject to benefits extended to him that are generally
alluring enough for him/her to forsake the remainder of his tenure of service,
in consideration of whatever he is to receive under the scheme. It is no doubt
true that the scheme comes in standard form, where the condition of
acceptance is “take it or leave it”. But, the question that arises in that case is
whether a statutory right, as sacrosanct as that created under the Act in
favour of an Employee to receive gratuity reckoned in accordance with the
Act, can be excluded on the basis of a Contract ? The nature of the right to

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56 LABOUR LAW NOTES 2021 (1) LLN

receive gratuity has been dealt with by their Lordships of the Supreme Court
in a recent decision in Nagar Ayukt, Nagar Nigam, Kanpur v. Mujib Ulla
Khan and another, MANU/UP/1981/2007, where it has been held in
Paragraph 11 & 12 of the report as under:
“11. We find that the Notification, dated 8.1.1982 was not referred to before the
High Court. Such Notification makes it abundantly clear that the Act is
applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has
given an overriding effect over any other inconsistent provision in any other
enactment. The said provision reads as under:
“14. Act to override other enactments, etc.— The provisions of this Act or any
rule made thereunder shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than this Act or in any instrument
or Contract having effect by virtue of any enactment other than this Act.”
12. In view of Section 14 of the Act, the provision in the State Act contemplating
payment of Gratuity will be inapplicable in respect of the Employees of the local
bodies” (Emphasis by Court)
13. No doubt this decision was rendered in the context of a local body,
but that is besides the point, as it is nobody’s case that the Act does not apply
to the Petitioner. If it does, Section 14 of the Act gives overriding effect to
the Act, not only over any other enactment, but also over any other
instrument or Contract having effect by virtue of any enactment other than
the Act. The language of Section 14, clearly spells this out. The VRS at best
is a scheme that has been framed by the Petitioners in furtherance of a
policy, may be as their Lordships said in A.K. Bindal and another (supra) to
reduce surplus staff and to bring about financial efficiency. But, the scheme
would be no more than a Contract framed under a policy of the Petitioners,
and would, therefore, be subservient to the Act; and a fortiori to the rights of
an Employee to receive gratuity on the date he retires, calculated in
accordance with the provisions of the Act. Even if the VRS were framed
under an Act or had statutory flavor, the provisions of the Section 14 of the
Act would still give it overriding effect, over anything said to the contrary in
the scheme.
14. So far as the decision of their Lordships in the case of A.K. Bindal
and another (supra) is concerned, the observations giving priority and
finality to all emoluments received under the VRS is in relation to a claim
for enhancement of Pay Scale, for an earlier period of time, when the
Employee was in service. There the entire framework of rights is different
because the right to receive emoluments or a certain Pay Scale, arises from
the Employer-Employee relationship, and the entitlement is governed by the
prevalent Pay Scale. In the nature of things that were involved in A.K.
Bindal and another (supra) what the Employee was enforcing was his right
to a higher Pay-Scale, in relation to a period of time prior to his retirement
under the VRS. The right to receive emoluments or pay at a particular rate,

Labour Law Notes / January-2021

January 2021 U.P. Financial Corporation v. Appellate Authority under 57
Payment of Gratuity Act (All.) (Jahangir Jamshed Munir, J.)
being essentially a matter of Contract between an Employer and Employee,
may be governed or fixed by rules, would all sink behind a Contract of
Voluntary Retirement under the VRS, where in complete liquidation of all
the Employees’ claims a lump sum is offered. In that case, however, there
was no issue regarding payment of a statutory entitlement like gratuity,
governed by an Act that prescribes the rate thereof and has overriding effect
over any other enactment, instrument or Contract having force of law, by
virtue of Section 14. Therefore, the right to receive other emoluments at a
higher scale, after accepting retirement under the VRS, cannot be compared
to the statutory entitlement to receive gratuity at the rate prescribed under the
Act. In fact, this Court thinks that it would be in the best interest of both the
Employer and Employee that calculation of gratuity, which forms part of the
VRS be always done in accordance with the provisions of the Act,
considering the overriding effect given to it, by Section 14. Thus, this Court
finds no force in the submission of Sri Khan, learned Counsel appearing for
the Petitioner on this count.
15. The next submission of Sri Khan, learned Counsel for the Petitioner is
that gratuity payable to the 3rd Respondent is to be worked out on basis that
the rate of Wages last drawn by the Employee, for the purpose of Section
4(2) of the Act, is to be calculated on the basis of his Basic Pay + dearness
allowance. He submits that the Third Respondent’s claim that interim relief
be added for the purpose of calculating wages last drawn, is patently
fallacious. He submits that it is so, going by the definition of Wages, under
Section 2(s) of the Act, which reads as follows:
“2. Definitions.— In this Act, unless the context otherwise requires,—
(a) ... ... ...
(b) ... ... ...
(c) ... ... ...
(d) ... ... ...
(e) ... ... ...
(f) ... ... ...
(g) ... ... ...
(h) ... ... ...
(i) ... ... ...
(j) ... ... ...
(k) ... ... ...
(l) ... ... ...
(m) ... ... ...

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58 LABOUR LAW NOTES 2021 (1) LLN

(n) ... ... ...

(o) ... ... ...
(P) ... ... ...
(q) ... ... ...
(r) ... ... ...
(s) “Wages” means all emoluments which are earned by an Employee while on
duty or on leave in accordance with the terms and conditions of his
employment and which are paid or are payable to him in cash and includes
dearness allowance but does not include any bonus, commission, house rent
allowance, overtime wages and any other allowance.”
16. Learned Counsel for the Petitioner has placed much emphasis on the
fact that going by the definition of Wages, read according to its plain
meaning, it would include all emoluments that are earned by an Employee
while on duty or on permissible leave to which he is entitled, and also
include dearness allowance. However, it excludes, according to learned
Counsel, bonus, commission, house rent allowance, overtime wages and any
other allowance. He submits that interim relief paid to the Petitioner would
qualify under the category of “any other allowance”, and, therefore, cannot
be included in the Wages last drawn by the Employee, for the purposes of
Section 4(2) of the Act. He, therefore, submits that the Workman’s claim
asking `800 to be added in determining his Wages last drawn, on the basis of
which his entitlement to gratuity is to be worked out, is contrary to the
provisions of Section 2(s) of the Act.
17. Sri Ranjeet Kumar Mishra, learned Counsel for the Petitioner disputes
the above submission and says that by application of no principle, can
interim relief be included in any of the specifically named allowances, under
Section 2(s) of the Act, or other allowances mentioned there, that are not to
form part of the Wages. In the context of emoluments paid to an Employee,
interim relief is something like a prompt relief that is provided to an
Employee in the interregnum between time that dearness allowance is
revised appropriately, to bring it in tune with the prevalent price index etc. It
may be likened to the temporary grant of a particular percentage of higher
emoluments, awaiting an impending revision of Pay-Scale, or emoluments
properly understood, like D.A. From what interim relief means in the context
of emoluments payable to an Employee, it is certainly part of Wages, if not
the basic scale, most certainly those periodical revisions that are made by
way of accretions to the salary, called dearness allowance, in order to keep
the real Wages of the Employee apace with the price index and the
escalating cost of living. It is by no means an allowance akin to house rent
allowance, city compensatory allowance, traveling allowance or bonus or
overtime Wages, that are generically different from the substantive Wages
payable to an Employee. Once wages are defined to mean and include

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January 2021 U.P. Financial Corporation v. Appellate Authority under 59
Payment of Gratuity Act (All.) (Jahangir Jamshed Munir, J.)
dearness allowance, there is absolutely no basis to exclude interim relief
from the definition of Wages, that is nothing but a temporary addition to the
principal component of Wages, until a revision of the dearness allowance or
the basic pay itself.
18. This Court is, therefore, of opinion that interim relief claimed by the
Employee to be part of his Wages for the purpose of reckoning his Wages
last drawn at the time of Voluntary Retirement from service, would be
indeed a part of it. Seen, thus, in the clear opinion of this Court, the
authorities below did not commit any manifest error of law in including
interim relief to the figure of wages last drawn by the Third Respondent,
while working out his entitlement to gratuity, at the time of his Voluntary
Retirement.
19. There is another issue that the learned Counsel for the Petitioner has
raised, and about it too, learned Counsel for parties were heard at length. He
has raised this issue because it has figured in the decision of the Controlling
Authority, regarding a decision taken by the Petitioner’s Board in view of
some Judgment in the case of one Shyamnarayan Tripathi, where interim
relief was directed to be made part of wages last drawn, in reckoning
gratuity payable to an Employee retiring under the VRS. A copy of the
resolution of the Board aforesaid, in that regard was filed before this Court
through the second supplementary-Affidavit, dated 13.2.2018. The document
is an extract of the minutes of the 526th meeting of the Petitioner’s Board,
held on 8th June 2010. The resolution was passed under item No.5 of the
agenda, and reads as follows:
“Extracts of the minutes of the 526th Board meeting held on Tuesday 8th June
2010 at 11.30 a.m. in the board meting Hall, Pickup Bhawan, Gomti Nagar,
Lucknow.
Volume-1
Matter put by Administration department
Note on Item No.5 of the agenda.
Consideration of the Orders, dated 22.7.2009 and 28.7.2009 in the cases of S/Sri
S.N. Awasthy and K.K. Shukla Ex-Employees of the Corporation Respectively,
passed by the Controlling Authority under the Payment of Gratuity Act 1972 and
Representations of Some of the other retired Employees of the Coroporation for
Payment of difference in amount of Gratuity W.E.F. 24.9.1997.
The Board considered the Note, dated 24.5.2010 of the Managing Director and
decided that all those Employees who have retired between 24.9.1997 to March
2005 shall be entitled for the payment of arrear of Gratuity on account of
enhanced limit of Gratuity of `3.50 Lacs and also on account of Interim Relief
granted by the Corporation.
The Board further decided that the Employees, who have retired after 1.4.2005
and have been paid the amount of Gratuity calculated on the basis of Basic +

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60 LABOUR LAW NOTES 2021 (1) LLN

D.A. + A.D.A. Shall also be eligible for arrear on the amount of Interim Relief
by treating it as part and parcel of Wages.”
20. It is argued by Sri Khan, learned Counsel for the Petitioner that the
benefit of the aforesaid resolution will not go to the 3rd Respondent, as the
decision of the Board of Directors taken in their meeting held on 8.6.2010,
sanctioning inclusion of interim relief for the purpose of payment of gratuity,
has been made with regard to those Employees, who retire on attaining the
age of superannuation. The benefit of this resolution would not go to the 3rd
Respondent or any other Employee, who retires under the VRS, that has its
own terms. Admittedly, the Petitioner retired availing VRS from the services
of the Petitioner on 31.7.2005, which is a date after 1.4.2005. According to
the Petitioner’s resolution, dated 8th June 2010 he would be entitled to
arrears of gratuity, calculated on the basis of basic pay + D.A. + Additional
D.A., including interim relief, which shall be treated as part and parcel of
Wages. Going by the precise phraseology of the Petitioner’s resolution there
is absolutely no basis to be found in the resolution or outside it for drawing
this classification, as learned Counsel for the Petitioners submits, between
Employees, who retire on attaining the age of superannuation and those, who
have accepted retirement under the V.R.S.
21. This distinction drawn appears to have no basis in the decision of the
Petitioner’s board to include interim relief as part and parcel of Wages, for
the purpose of calculating gratuity payable to a retiring Employee. It is of
little significance whether the Employee retires on superannuation or
voluntarily, once in principle, the Petitioners have accepted that retired
Employees too are entitled to receive arrears of gratuity, worked out on basis
that interim relief would form part of wages to reckon the gratuity payable.
There is absolutely no reasonable classification between a superannuating
Employee and one retiring voluntarily, for the purpose of calculation of
gratuity that is based on an intelligible differentia bearing a reasonable nexus
with the object sought to be achieved by such a classification, between
Employees retiring from the Petitioner’s services. To make this kind of a
classification would lead to promoting invidious and hostile discrimination,
between two sets of similarly circumstanced Employees, at least, as far as
payment of gratuity is concerned.
22. This is, particularly, so as the right to receive gratuity, governed by
the Act as it is, makes little distinction between retirement of an Employee
that comes about on superannuation or otherwise. Both kinds of retirements
are treated at par under the Act, as would be evident from the provisions of
Section 4(1) that are quoted below:
“4. Payment of gratuity.— (1) Gratuity shall be payable to an Employee on the
termination of his employment after he has rendered continuous service for not
less than five years,—
(a) on his superannuation, or

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January 2021 U.P. Financial Corporation v. Appellate Authority under 61
Payment of Gratuity Act (All.) (Jahangir Jamshed Munir, J.)
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
Provided that the completion of continuous service of five years shall not be
necessary where the termination of the employment of any Employee is due to
death or disablement:
[Provided further that in the case of death of the Employee, gratuity payable to
him shall be paid to his nominee or, if no nomination has been made, to his heirs,
and where any such nominees or heirs is a minor, the share of such minor, shall
be deposited with the Controlling Authority who shall invest the same for the
benefit of such minor in such bank or other financial institution, as may be
prescribed, until such minor attains majority.]
Explanation : For the purposes of this section, disablement means such
disablement as incapacitates an Employee for the work which he was capable of
performing before the accident or disease resulting in such disablement.”
(Emphasis by Court)
23. A perusal of Clause (a) of sub-section (1) of Section 4 of the Act, and
Clause (b) of sub-section (1) aforesaid would show that for the purpose of
entitlement of an Employee to gratuity, the mode of termination of his
employment after rendering five years or more of continuous service, that
have been placed at par, are superannuation under Clause (a), and retirement
or resignation under Clause (b). Retirement other than superannuation under
Clause (b), in the opinion of this Court, would clearly take within its fold,
Voluntary Retirement.
24. Of course, the Act adds to it by Clause (b) of sub-section (1),
resignation also as an contingency which after five years or more of
continuous service, would entitle an Employee to payment of gratuity under
the Act. Considering that the Act has overriding effect over any other law, or
any contract or instrument having force of law to the contrary by virtue of
Section 14, the distinction between retirement on reaching the age of
superannuation and retirement that is voluntary under an option exercised
availing the V.R.S., seems to be contrary to what the Act says. The
resolution, dated 8.6.2010 passed by the Petitioner’s Board, therefore, would
equally apply to the Third Respondent’s case, as it does in the case of a
Workman, who retires on attaining the age of superannuation.
25. This Court, therefore, finds that the conclusions of the Controlling
Authority and the Appellate Authority on this score, may be for different or
added reasons, are right and unassailable.
26. In the result the Writ Petition fails and is dismissed with Costs.
27. The amount of Gratuity deposited with the Controlling Authority be
paid to the Petitioner within 15 days of receipt of a certified copy of this
order by the said Authority.
  

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62 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 62 (All.)

IN THE HIGH COURT OF ALLAHABAD
Jahangir Jamshed Munir, J.
Writ C. No.37024 of 2012
4.8.2020
Jagran Prakashan Limited and others …..Petitioners
Vs.
Presiding Officer, Labour Court and others …..Respondents
UTTAR PRADESH INDUSTRIAL DISPUTES ACT, 1947 (28 of 1947),
Section 4-K — REFERENCE — Scope of — INDUSTRIAL DISPUTES
ACT, 1947 (14 of 1947), Sections 2(oo), 2(a)(ii), 25-N & 25-O —
WORKING JOURNALISTS AND OTHER NEWSPAPER
EMPLOYEES (CONDITIONS OF SERVICE) AND
MISCELLANEOUS PROVISIONS ACT, 1955 (45 of 1955), Sections
2(dd), 2(f) & 3 — Appropriate Government to refer Industrial Dispute
— Retrenchment — Conditions precedent to retrenchment —
Procedure for closing down undertaking — Sham Closure —‘Non-
journalist Newspaper Employee’ — ‘Working Journalist’ —
Applicability of Central ID Act to working journalists — Respondent-2
joined Petitioner as Apprentice in trade of Plate-making — Terminated
due to installation of CTP Machine — However, Process Department
not closed due to installation of CTP — It is alleged that some new
persons also recruited and some others retained — Respondent’s
services terminated without Notice in violation of provisions of Act —
Industrial Dispute raised — Labour Court held Termination illegal and
ordered Reinstatement with continuity of service and 50% Back Wages
— On challenge, held, Section 3 of Working Journalists Act extends
application of Central ID Act, to Working Journalists subject to
modifications envisages under sub-section (2) — Newspaper
establishment would clearly fall under sub-clause (ii) of Clause (a) of
Section 2, making Appropriate Government relating to Newspaper
establishment a State Government under Central Act — Reference of
dispute under Section 4-K of State Act, held to be a valid reference — A
Plate Maker, a mere technical hand and a Workman — As per
recommendations of Manisana Wage Board, Plate Maker, a Workman,
not a Working Journalist within meaning of Working Journalists Act —
Labour Court reasonably concluded that there was no closure of part of
Unit or Undertaking — Process Department continue to function, may
be with changed technology — Change over to CTP Machines not led to
dispensation of services of Plate Makers like Respondent-Workman —
Labour Court rightly concluded that closure pleaded by Petitioner is a

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 63
(All.) (Jahangir Jamshed Munir, J.)
‘sham’ to get rid of Respondent — Retrenchment held to be in breach of
Section 25-N — Workman, superannuated during pendency of Writ
Petition, cannot be reinstated — His salary revised according to
recommendations of Wage Board — Detailed Calculation furnished by
Workman showing his entitlement worked at 50% of his Wages in terms
of Award at `14,70,137 — Since Workman did not render any service
during entire period till Superannuation, ends of justice would meet by
modifying Award to payment of `6.00 Lakhs towards full and final
satisfaction of claim to be paid within two months failing which Interest
at 6% to be paid — Workman entitled to Cost of `20,000 — Writ
Petition partly allowed. (Paras 22 to 27, 31 to 33, 38 & 52 to 57)
CASES REFERRED
British India Corporation v. Collector, Kanpur Nagar, 2016 (1) ALJ 202 ...............................17
Firestone Tyre & Rubber Co. of India (P) Ltd. v. Workmen Employed rep. by Firestone
Tyre Employee’s Union, 1981 (3) SCC 451......................................................................44
H.P. Mineral & Industrial Development Corporation Employees’ Union v. State of H.P,
1996 (7) SCC 139..............................................................................................................49
Hariprasad Shivshanker Shukla v. A.D. Divelkar, AIR 1956 SC 121 ..........................45, 46, 47
Mahendra Yadav v. Om Prakash, 2006 (65) ALR 560.............................................................19
Management of the Daily Pratap v. Their Katibs, 1972 (2) SCC 342 ......................................34
Mohd. Sarwar v. State of U.P., 2013 (6) AWC 6169 ....................................... 43, 44, 45, 50, 51
Novartis India, Ltd. v. State of West Bengal, 2004 (2) LLN 599 (Cal)....................................20
Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd., 19789 (10 LLN 336 (SC) .................44
Pratap Chandra Mohanti v. General Manager, United News of India, 1993 Lab IC 919.........37
Sadhu Ram v. Delhi Transport Corporation, 1983 (2) LLN 658 (SC)......................................21
Steel Authority of India Ltd. (Sales Branch) v. State of U.P., 2011 (129) FLR 506 ................18
Triveni Glass Ltd. v. State of U.P., 2008 (3) All LJ 420..............................................41, 44, 52
Chandra Bhan Gupta, Advocate for Petitioners.
C.S.C., Bushra Maryam, M.K. Sharma, Manoj Kumar & Namit Kumar Sharma,
Advocates for Respondent.
Finding — W.P. partly allowed.
JUDGMENT
1. M/s. Jagran Prakashan Limited, Allahabad and their Establishment at
Varanasi, dissatisfied with an award of the Presiding Officer, Labour Court,
U.P., Allahabad, dated 27.1.2012 (published on 11.4.2012), made in
Adjudication Case No.1 of 2009, have instituted this Writ Petition,
challenging the Award. The Award, last mentioned, has been rendered in an
Industrial Dispute between M/s. Jagran Prakashan Limited and their
Workman, Ram Charitra Mishra. The Adjudication Case is a sequel to a
reference made under Section 4-K of the Uttar Pradesh Industrial Disputes
Act, 1947 (for short, ‘the State Act’) by the Labour Commissioner, U.P.,
Kanpur (an ex officio Secretary to the Government) in the following terms
(rendered into English from Hindi vernacular):

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64 LABOUR LAW NOTES 2021 (1) LLN

“Whether the act of the Employers in terminating the services of their

Workman, Sri Ram Charitra Mishra son of Sri Satya Narain Mishra,
‘junior plate maker’, vide Order, dated 14.11.2006, with effect from
15.11.2006, is justified and/or lawful? If not, to what benefit/relief is the
concerned Workman entitled and in what terms?
2. The Petitioners are admittedly a newspaper establishment, who employ
working journalists, non-working journalists as well as other Employees.
According to the case of the Second Respondent, Ram Charitra Mishra, the
Workman, who shall hereinafter be referred to as the ‘Workman’, was
initially enrolled as apprentice in Petitioners’ establishment w.e.f. 17.7.1989.
He trained as an apprentice in the trade of plate making and was employed
as a semi-skilled Workman in the Petitioners’ establishment, on the basis of
an oral Engagement, dated 1.11.1989. The Petitioners shall hereinafter be
referred to as the ‘Employers’. The Workman’s case is that ever since his
appointment, he has been in harness of the Employers, working regularly as
a plate maker. He has done his duties honestly and with integrity. He was
served with a Letter, dated 14.11.2006, suddenly terminating his services
w.e.f. 15.11.2006. The reason assigned for dispensation of his services was
the installation of a C.T.P. Machine, which the Workman castigates as
improper, wrong and a colourable exercise of powers.
3. It is the Workman’s further case that in the publication of a newspaper,
process is a necessary and intermediate stage. Without processing, there can
be no publication of a Newspaper. According to the Workman, the process
Department has not been closed down due to installation of the C.T.P.
Machine. The Sub-Editor, the clerk and the operator, besides other hands,
have been retained in the Department after requisite training. The installation
of the machine has not led to deprivation of employment to those, who were
in the process Department. It is also claimed that prior to dispensation of the
Workman’s services, some new hands have been recruited, but his services
have been dispensed with without bearing in mind his seniority. He was a
permanent Workman. He has never been served with a notice of closure. At
the time when the Workman’s services have been dispensed with, more than
100 Workmen were in harness of the Employers.
4. It is the Workman’s case that according to Section 25-O of the
Industrial Disputes Act (for short, ‘the Central Act’), it is necessary to secure
permission for a valid closure from the Appropriate Government, which in
this case, has not been obtained. It is also pleaded by the Workman that the
provisions of Section 25-N of the Central Act have been observed in breach.
The Order of Termination of his services squarely falls in the category of
retrenchment. It is pleaded that he has not been served with three months’
prior notice before retrenchment or paid notice pay in lieu thereof. It is also
the Workman’s case that no Retrenchment Compensation has been paid to
him. It is specifically pleaded that whatever sum of money in connection

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 65
(All.) (Jahangir Jamshed Munir, J.)
with his unlawful retrenchment has been paid, he has received under protest
and without prejudice. Alongside, it is pleaded that the dispute raised by him
is not barred by estoppel. The Order for Termination of his services is
unjustified and illegal. He sought relief of reinstatement in service with
continuity and full Back Wages. This case of the Workman is based on the
Written Statement that he put in before the Labour Court, after registration
of the Adjudication Case under reference.
5. The Employers lodged their Written Statement too in the Adjudication
Case, where they admitted the factum of the Workman being in their harness
and dispensation of his services w.e.f. 15.11.2006. It is pleaded that M/s.
Jagran Prakashan Varanasi Pvt. Ltd. has been amalgamated with M/s. Jagran
Prakashan Limited. M/s. Jagran Prakashan Limited have a Unit of theirs at 7,
P.D. Tandon Road, Allahabad, that is registered under the Factories Act,
1948. It is pleaded by the Employers that the provisions of the Working
Journalists and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955 (for the short, ‘the Working Journalists
Act’) govern their establishment, and, they are a Newspaper establishment.
6. It is the Employers’ further case the Workman was employed as a full
time Employee, working in their process Department as a junior plate maker
since 1.11.1991. On account of a change over to the very modern C.T.P.
Printing Machine, their process department has been closed down. The
aforesaid closure of the process Department has resulted in dispensation of
services of a total of seven Workmen, including the Workman. Those
Workmen, who had knowledge about working of computers, have been
retained after extending some elementary training to them, which enables
them to operate the new machine. It is the Employers’ further case that the
Workman has been paid due closure Compensation, under Section 25-FFF of
the Central Act. It is also the Employers’ case that their establishment, in all
its Departments, Employ a total of 83 hands. As such, the provisions of
Sections 25-O and 25-N of the Central Act are not applicable. The closure is
justified, bona fide and valid.
7. It is pleaded that a case about validity of closure has not been referred.
The reference is not maintainable and illegal. The Workman has been paid
his earned Wages upto 15th December, 2006, notice pay, closure
Compensation and bonus, all totalling a sum of `72,676, which the Workman
has received as full and final payment of his out standings. He has no right to
challenge closure of the Section/Department, where he was employed. The
Workman is not entitled to any relief.
8. It may be recorded here that before the Labour Court, both parties filed
their Written Statements and also rejoinder statements, which constitute their
pleadings. Both parties filed their documentary evidence, besides leading
oral evidence. The Workman appeared in support of his case as WW1. It
must be remarked here that a subsidiary issue covered by the reference and,

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66 LABOUR LAW NOTES 2021 (1) LLN

therefore, examined by the Labour Court, was about the date of the
Workman’s retention. The parties appear to be at issue about the date of the
Workman’s retention by the Employers, inasmuch as the Workman claims
that he was retained w.e.f. 17.7.1989, whereas the Employers say that it was
w.e.f. 1.11.1991. This question was gone into by the Labour Court, on the
basis of documentary evidence and also the law applicable to apprentices in
an establishment, who later on go on to become regular Employees. It
appears that the Workman was retained as an apprentice on 17.7.1989 at the
Varanasi Unit of the Employers. He was an apprentice on a stipend of
`650 per month. This period of paid apprenticeship was duly considered by
the Labour Court, bearing in mind the provisions of the Apprentices Act,
1961. It found that the Workman was in the Employers’ harness since
17.7.1989 and not 1.11.1991, as urged by the Employers. The time period of
retention would have material bearing on the validity of the Workman’s
dispensation from service since closure or retrenchment Compensation etc.
paid to him, would be determinable on that basis.
9. It was also urged before the Labour Court that the reference was
without jurisdiction, inasmuch as the Workman qualified as such, under the
Central Act on account of extension of the protective umbrella of the Central
Act to working journalists and other Newspaper Employees by Section 3 of
the Working Journalists Act; this extension of the benefit of the Central Act
to working journalists and other Employees of the Newspaper leads to the
inevitable consequence that the ‘Appropriate Government’, to make a
reference, would be the Central Government, under Section 10 of the Central
Act and not the State Government, under Section 4-K of the State Act. The
reference here being one made by the State Government, under Section 4-K
of the State Act, it was incompetent and all proceedings before the Labour
Court on its basis a nullity.
10. The Labour Court by its Award, dated 27.1.2012 has answered the
reference in favour of the Workman and against the Employers, holding the
Termination of service of the Workman invalid and ordering his
reinstatement with continuity along with 50% Back Wages. The sum of
money paid towards closure Compensation has been ordered to be adjusted.
Costs in the sum of `2000 also, have been awarded in favour of the
Workman.
11. Heard Sri Chandra Bhan Gupta, learned Counsel for the Employers
(Petitioner) and Sri Manoj Kumar Sharma, learned Counsel appearing on
behalf of the Workman (Respondent No. 2).
12. Before this Court, the learned Counsel for the Employers has
substantially urged that the impugned Award is without jurisdiction, on two
counts. First, the reference is incompetent, inasmuch as to every working
journalist and other Employee of a Newspaper establishment, the provisions
of the Central Act alone apply, where reference can be made by the Central

Labour Law Notes / January-2021

January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 67
(All.) (Jahangir Jamshed Munir, J.)
Government, under Section 10 of the last mentioned Act, and not the State
Government under Section 4-K of the State Act. He further submits that
even if the State Government be found competent to make a reference, in
relation to the Workman on ground that he is an Employee of a Newspaper
establishment other than a working journalist, the reference can be made to
and dealt with by the competent Labour Court or Industrial Tribunal
appointed under the Central Act. It cannot be made to or answered by the
Labour Court, constituted under the State Act, assuming that the State
Government is competent to make a reference, relating to the Workman. As
such, the impugned Award, if the reference were held competent, would be
without jurisdiction, being one rendered by a Labour Court, not competent to
decide a reference under the Central Act.
13. Secondly, the impugned Award is assailed as one without jurisdiction
on ground that it is based on a reference that is completely away from the
dispute that is involved between parties. It is pointed out by the learned
Counsel for the Employers that the reference is one that relates to
termination of services of the Workman, whereas the dispute involved is
about closure. Learned Counsel for the Employers submits that a case where
the services of a Workman come to an end on account of closure of an
industry or a part of it, is completely different from termination of services,
that fall within the mischief of retrenchment, both under the Central Act and
the State Act. Where services of an Employee come to an end in
consequence of closure of an industrial unit or one of its Department, the
dispute that is to be referred by the Appropriate Government is about the
validity of the closure. It is not about validity of termination of service of a
Workman, that would fall within the generic category of retrenchment.
14. It is emphasized by the learned Counsel for the Employers that a
Labour Court is a Court of referred jurisdiction. It cannot enlarge, change or
alter the scope of the reference made. In the present case, the dispute referred
was about termination of services of the Workman and its validity; it was not
at all about the validity of closure of that Department of the Employers
where the Workman was serving, leading to dispensation of services. As
such, it was not at all open to the Labour Court to examine the question of
validity of the closure, that led to dispensation of the Workman’s service as
that was beyond the scope of reference. The Labour Court, in the submission
of the learned Counsel for the Employers, was, therefore, not at all clothed
with jurisdiction to determine the validity of the closure pleaded by the
Employers, being a Court of referred jurisdiction.
15. The learned Counsel for the Workman has refuted the submission
advanced on behalf of the Employers. These will be noticed a little later,
together with a more elaborate statement by the learned Counsel for the
Employers in support of his contentions summarized above.

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68 LABOUR LAW NOTES 2021 (1) LLN

16. This Court finds that on the submissions of parties advanced, the
following two questions arise for consideration:
(1) Whether a junior plate maker employed with a newspaper
establishment is a Workman by virtue of the Working Journalists Act
alone, and exclusively governed by the provisions of the Central Act so
as to render a reference under Section 4-K of the State Act in his case
incompetent? If so, is the Labour Court/Industrial Tribunal constituted
under the Central Act, alone competent to answer a reference in relation
to such a Workman?
(2) Whether on a reference about validity of Termination of services of a
Workman, the Labour Court as a Court of referred jurisdiction, can go
into the validity of a closure pleaded by the Employers to determine if it
is sham and no closure at all ?
17. The submissions of the learned Counsel for the Employers with
regard to Question No.1 have been summarized hereinabove. Dilating on
those submissions, learned Counsel for the Employers has placed reliance on
a decision of this Court in British India Corporation v. Collector, Kanpur
Nagar and others, 2016 (1) ALJ 202. In the said case, the question was
whether the Workman of a Central Government Company, where the Central
Government had deep and pervasive control over its affairs, could invoke the
provisions of Section 6-H(1) of the State Act to recover his dues found for
him under an Award passed in an adjudication case by the competent Labour
Court/Tribunal. The Award was also passed on a reference made under the
State Act. It was held by this Court that the Employers being entirely a
Central Government Company, the Award passed by the Industrial Tribunal
on a reference made by the State Government under the State Act, though
not challenged, would not clothe the Deputy Labour Commissioner with
jurisdiction to recover, on the basis of the Award under Section 6-H(1) of the
State Act. In British India Corporation (supra), it was held:
“9. In Civil Misc. Writ Petition No.3667 of 2011 the British India Corporation v.
State of U.P. decided on 12th March, 2013 this Court quashed the Labour Court
Award dated 7th October, 2010 holding that the appropriate Government is the
Central Government in the matter of the Petitioners. In view of the above
discussions it is clear that from the very beginning the appropriate Government
with respect of the Petitioner-Company was the Central Government. In the
Petitioner’s case itself in 2011 (2) ALJ (NOC) 154 (All) in Paragraph No.18 as
quoted above, this Court noted, the fact that the Notification under Section 39 of
the Industrial Disputes Act issued by the Central Government empowering the
state authority to refer the dispute even in the case of Central Government
Company would not be applicable in the present case for the reason that firstly
the reference was made in July, 1996 when the said Notification was not in
existence and secondly under the notification the state authorities could refer an
Industrial Dispute under Section 10 of the Central Act to the Labour Court or
Tribunal constituted by the Central Government. In the present set of facts the

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 69
(All.) (Jahangir Jamshed Munir, J.)
basis of the impugned Order under Section 6-H(1) of the U.P. Act is the Award
dated 16th March, 1988 which was passed by the Labour Court under the U.P.
Act. No reference was made under Section 10 of the Industrial Disputes Act,
1947 to the Labour Court or Tribunal constituted by the Central Government.
This Court in the Judgment noted in Para 8 above held the reference to be void
and quashed the Award.
10. In both the present Writ Petitioners the Award is not under challenge but the
fact remains that the source of claim of the Respondent-Workman is the Award
dated - 16th Marcy, 1988 which was passed upon a reference by the State
Government under the U.P. Act and not by the Central Government, which was
the appropriate Government under the Central Act. Under the circumstances the
Respondent No.3 cannot be said to have jurisdiction in respect of Industrial
Dispute or matter incidental thereto, relating to the Petitioners. Thus both the
impugned Orders passed by the Deputy Labour Court Commissioner Respondent
No.3 are held to be without jurisdiction.”
18. Further reliance has been placed by the learned Counsel for the
Employers on a decision of this Court in Steel Authority of India Ltd. (Sales
Branch), Kanpur v. State of U.P. and others, 2011 (129) FLR 506, where
the issue was, whether the Steel Authority of India being an industry under
the authority of the Central Government, or so to speak a public sector
undertaking, would be subject to the jurisdiction of the Labour Court,
appointed under the State Act on a reference made by the State Government,
under that Act. Answering this issue in the negative, it was held by this
Court in Steel Authority of India Ltd. (supra):
“8. It will be seen that so far as SAIL is concerned, it answers the description of
an Industry under the authority of the Central Government. The aforesaid aspect
of the matter is further established from the Notification, dated 3.7.1998
(referred to above) issued by the Central Government under Section 39 of the
Act, 1947 which contains the list of Central Public Sector Undertakings and
includes the name of SAIL at Item No.119.
9. Counsel for the Respondent-Workmen could not refer to any relevant fact for
disputing the said contention of the Petitioner. It is, therefore, held that so far as
the SAIL is concerned, the appropriate Government under the Act, 1947 is the
Central Government.
10. Reference of disputes to the Labour Court/Industrial Tribunal is under
Section 10(c) of the Act, 1947. The Section provides that a dispute or any matter
appearing to be connected with, or relevant to, the dispute, covered by matters
specified in Second Schedule, the reference shall be referred to the Labour Court
for adjudication. Section 10(d) of the Act, 1947 provides that a dispute or any
matter appearing to be connected with, or relevant to any matter specified in the
Second Scheduled or the Third Schedule shall be referred to a Tribunal for
adjudication.
11. From the aforesaid it is apparently clear that so far as the disputes qua
matters covered by Second Schedule are concerned, it can either be referred to
the Labour Court or to the Industrial Tribunal. Dispute pertaining to matters
covered by Third Schedule have to be referred to the Industrial Tribunal only.

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70 LABOUR LAW NOTES 2021 (1) LLN

Labour Court has been defined under Section 2(kkb) to be a Court constituted
under Section 7 of the Act, 1947. Section 7 provides that appropriate
Government may, by Notification in the official Gazette, constitute one or more
Labour Courts for adjudication of the Industrial Disputes relating to any matter
specified in the Second Schedule and for performing such other functions as may
be assigned to them under the Act.
12. So far as the Industrial Tribunal is concerned, the same has been defined
under Section 2(r) and means an Industrial Tribunal constituted under Section 7-
A of the Act, 1947.
13. It is not in dispute that the Central Government has constituted Industrial
Tribunal cum Labour Court in exercise of powers under the Act, 1947.
14. This Court may record that a dispute pertaining to discharge/removal of
Workmen including reinstatement or grant of relief to the Workmen of a Central
Government Undertaking who had wrongly been dismissed is covered by
Section 4 of the Act, 1947. What logically follows is that for such a dispute, the
appropriate Government to refer the matter to the Labour Court or the Industrial
Tribunal in exercise of powers under Section 10(c) would be the Central
Government.
15. It is admitted on record that the reference in the facts of the case was made
by the State Government to the Labour Court under Section 4-K of the U.P.
Industrial Disputes Act, 1947 on 6.2.1998 which was registered as Adjudication
Case No. 12 of 1998 and was transferred to the Labour Court U.P. at Kanpur-III
on 24.5.2006 and allotted new registration No. as Adjudication Case No.105 of
2006.
16. It is held that on the date the reference was made it was the Central
Government, which had the competence to make the reference under Section 10.
17. The Notification relied upon by the Counsel for the Workmen, dated
3.7.1998 is prospective in nature and will not infuse life in a dead reference
which was made by the State Government on a date it was not competent to do
so.
18. It has also been brought to the notice of the Court that the Notification, dated
3.7.1998 has since been withdrawn and as on date it is the Central Government
which can refer the disputes in respect of Public Sector Undertakings are
concerned.
19. Since the reference itself was bad, any decision thereon would fall
automatically for want of authority.”
19. Learned Counsel for the Workman on the other hand submits that the
question in hand goes to the root of the matter, as it puts in issue the power
of the State Government to make a reference. The Employers ought to have
challenged the Order of reference, at the time it was made. He submits that
no challenge at the stage of reference was laid through appropriate
proceedings by the Employers, and now, after an Award has been made by
the Labour Court, it is no longer open to question the jurisdiction of the State
Government to make a reference under the State Act or the jurisdiction of

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 71
(All.) (Jahangir Jamshed Munir, J.)
the Labour Court, functioning under that Act, to pronounce the Award
impugned. Learned Counsel for the Workman has submitted that mere
mention of a wrong provision would not denude the Court of jurisdiction,
which it otherwise has. In support his contention, reliance has been placed
on the decision of this Court in Mahendra Yadav v. Om Prakash, 2006 (65)
ALR 560. The said decision was rendered in the context of challenge to a
compromise recorded in a Civil Suit by filing a Miscellaneous Civil Appeal
instead of a regular Appeal under Section 96, C.P.C. Since both, a regular
Appeal and a Miscellaneous Appeal would lie to the same Court, it was held
in Paragraph 12 of the Mahendra Yadav (supra):
“12. The submission of the learned Counsel for the Appellant that instead of
filing a Miscellaneous Appeal, a regular Appeal under Section 96, C.P.C., was
filed and therefore the same was not maintainable needs to be noted. However,
he could not dispute that even if a Miscellaneous Appeal would lie before the
Court below and there will not be change of forum of the Appellate Court may
be a regular Appeal or a Miscellaneous Appeal. Assuming for a moment that the
said argument of the Appellant has some force it will not make any difference as
it has been firmly established that mere mention of a wrong section will not
make any difference if the Court had the jurisdiction to entertain and decide the
Appeal.”
20. It is next submitted that the question as to which Government is the
Appropriate Government under the Central Act depends upon the fact as to
which Government is responsible for maintaining industrial peace of the
territory, in relation to a particular Industrial Dispute. Reliance has been
placed on a decision of the Calcutta High Court in Novartis India, Ltd. v.
State of West Bengal and others, 2004 (2) LLN 599 (Cal) : 2004 (101) FLR
278. In Novartis India Ltd. (supra), the controversy was about, which State
Government would have territorial jurisdiction over the Industrial Dispute,
and in that context it was held:
“19. From the discussions made hereinabove and the decisions referred to
hereinabove the following broad principles emerge:
(1) Head Office of a Company may be located in one State but it may have a
branch in another State. The branch may be under the control of the head
Office yet it is a separate branch engaged in an industry and is itself an industry
being carried on by the Company as a separate Unit. Hindustan Aeronautics
Ltd. case, 1979 (1) LLN 204 (vide supra)].
(2) If there is any disturbance of industrial peace at a branch Office located in a
different State where considerable number of Workmen are working the
appropriate Government concerned in the maintenance of industrial peace is
the Government of that State where the branch is located. [Hindustan
Aeronautics Ltd. case, 1979 (1) LLN 204 (vide supra)].
(3) If the parties to an Industrial Dispute reside within a State or if the subject-
matter of the Industrial Dispute substantially arises within the State then the
Government of that State will be the appropriate Government to make a

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72 LABOUR LAW NOTES 2021 (1) LLN

reference under Section 10 of the said Act. Indian Cable Company, Ltd. (vide
supra) Workmen of Sri Ranga Vilas Motors (Private) Ltd. case (vide supra)].
(4) Ordinarily, if there is a separate establishment and the Workman is working
in that establishment, the Industrial Dispute will arise at that place [Workman
of Sri Ranga Vitas Motors (Private), Ltd. case (vide supra)].
(5) There should clearly be some nexus between the dispute and the territory of
the State and not necessarily between the territory of the State and the industry
concerning, which the dispute arose: Workmen of Sri Ranga Vitas Motors
(Private) Ltd. case (vide supra).”
22. There is no doubt that the State Government was competent and has
jurisdiction and authority to refer the Industrial Dispute regarding termination of
services of—
“(1) Sri Bikash Bhusan Ghosh;
(2) Sri Pradip Kumar Mukherjee; and
(3) Sri Shyama Charan Mallick to the Tribunal under Section 2-A of the said
Act separabtely instead of referring the dispute separately the State
Government by one reference had referred the matter to the Tribunal regarding
Termination of services of the said Workmen.”
It is evident from the Order No.888-IR/IR/11L-11/95, dated 12 June, 1997
(Annexure P12 of the Writ Application), that the Government exercised the
power under Section 10 read with Section 2-A of the said Act. It is not a case
that Government had no jurisdiction to refer the Industrial Dispute under Section
10 read with Section 2-A of the said Act individually. A careful reading of
Annexure P12 of the Writ Application shows that though the Industrial Disputes
regarding termination of service of—
(1) Sri Bikash Bhusan Ghosh;
(2) Sri Pradip Kumar Mukherjee; and
(3) Sri Shyama Charan Mallick were referred to the Tribunal by a single order
but the dispute referred to the Tribunal are Industrial Disputes separate from
each other and each one is a dispute under Section 2-A of the said Act.
There was no inherent lack of jurisdiction of the State Government to refer those
Industrial Disputes. At best it may be said that the reference made was irregular
but such irregularity did not go to the root of the matter and therefore the order
of reference was neither null and void nor even voidable. The objection raised by
the Writ Petitioner is trivial and on hyper-technical grounds which should not be
entertained by this Court exercising Writ jurisdiction.”
21. It is next contended by the learned Counsel for the Workman that
where the reference of a dispute validly confers jurisdiction on the Labour
Court or Tribunal, findings on jurisdictional facts recorded by the Labour
Court are not open to interference by this Court under Article 226 of the
Constitution. It is also urged that interference on a mere technical ground is
not at all appropriate. In support of his contention, learned Counsel for the
Workman has placed reliance upon a decision of the Supreme Court in

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 73
(All.) (Jahangir Jamshed Munir, J.)
Sadhu Ram v. Delhi Transport Corporation, 1983 (2) LLN 658 (SC) : 1983
(4) SCC 156. In Sadhu Ram (supra), the legality of termination of services
of the Workman, a Bus Conductor, was the subject matter of reference by
the Delhi Administration to the Labour Court. It was urged on behalf of the
Employer that the reference was incompetent, because the Workman had not
raised any demand with the Management before moving the Conciliation
Authority. It was contended, therefore, that there was no Industrial Dispute
that could be referred. After the Award was made, the Employers challenged
it in the High Court, where aforesaid contention of the Employers was
accepted. Reversing the High Court, the Supreme Court held in Sadhu Ram
(supra):
“2. .....The Management invoked the jurisdiction of the High Court of Delhi
under Article 226 of the Constitution questioning the Award of the Labour
Court. The High Court went into a learned discussion on what was an Industrial
Dispute and what was a jurisdictional fact, a discussion which in our opinion was
an entirely unnecessary exercise. In launching into a discussion on these
questions needlessly, the High Court appeared to forget the basic fact that the
Labour Court had given two categoric findings: (i) that the Union had raised a
demand with the Management and (ii) that the termination of the services of the
Workman was a mala fide and colourable exercise of power. Delving into the
evidence as if it was an Appellate Court, and re-appreciating the evidence, the
High Court thought that one of the documents upon, which the Labour Court had
relied was a suspicious document; and the High Court went on to find that no
demand had been raised and there was no Industrial Dispute, which could be
properly referred by the Government for adjudication. On those findings a
learned Single Judge of the High Court quashed the Award of the Presiding
Officer of the Labour Court. The decision of the learned Single Judge was
affirmed by a Division Bench. The Workman has come before us under Article
136 of the Constitution.
3. We are afraid the High Court misdirected itself. The jurisdiction under Article
226 of the Constitution is truly wide but, for that very reason, it has to be
exercised with great circumspection. It is not for the High Court to constitute
itself into an Appellate Court over Tribunals constituted under special
legislations to resolve disputes of a kind qualitatively different from ordinary
Civil disputes and to readjudicate upon questions of fact decided by those
Tribunals. That the questions decided pertain to jurisdictional facts does not
entitle the High Court to interfere with the findings on jurisdictional facts, which
the Tribunal is well competent to decide. Where the circumstances indicate that
the Tribunal has snatched at jurisdiction, the High Court may be justified in
interfering. But where the Tribunal gets jurisdiction only if a reference is made
and it is therefore impossible ever to say that the Tribunal has clutched at
jurisdiction, we do not think that it was proper for the High Court to substitute its
Judgment for that of the Labour Court and hold that the Workman had raised no
demand with the Management. There was a conciliation proceeding, the
conciliation had failed and the Conciliation Officer had so reported to the
Government. The Government was justified in thinking that there was an
Industrial Dispute and referring it to the Labour Court.”

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74 LABOUR LAW NOTES 2021 (1) LLN

22. This Court has considered the rival submissions advanced. To the
understanding of this Court, the propositions advanced on both sides, so far
as the question in hand is concerned, do not do much to resolve it. The
decisions relied upon by the learned Counsel for the Employers generally
refer to cases where the Employers were a Central Government Company or
an undertaking, where the Central Government had deep and pervasive
control. It was in that context held in the decisions relied upon by the learned
Counsel for the Employers that the Appropriate Government would be the
Central Government, and the Labour Court or the Tribunal competent to
decide, would be one appointed under the Central Act. In Section 2(dd) and
2(f) of the Working Journalists Act, a non-journalist newspaper Employee
and a working journalist are defined as under:
“2. Definitions .— In this Act, unless the context otherwise requires,—
(a)
(b)
(c)
(d)
(dd) “non-journalist newspaper Employee” means a person employed to do any
work in, or in relation to, any Newspaper establishment, but does not include
any such person who–
(i) is a working journalist, or
(ii) is employed mainly in a managerial or administrative capacity, or
(iii) being employed in a supervisory capacity, performs, either by the nature
of the duties attached to his Office or by reason of the powers vested in him,
functions mainly of a managerial nature;]
(e)
[(ee)
(f) “working journalist” means a person whose principal avocation is that of a
journalist and [who is employed as such, either whole-time or part-time, in, or
in relation to, one or more Newspaper establishments], and includes an editor,
a leader-writer, news-editor, sub-editor, feature-writer, copy-tester, reporter,
correspondent, cartoonist, news-photographer and proof-reader, but does not
include any such person who—
(i) is employed mainly in a managerial or administrative capacity; or
(ii) being employed in a supervisory capacity, performs, either by the nature
of the duties attached to his Office or by reason of the powers vested in him,
functions mainly of a managerial nature;”
23. Section 3 of the Act under reference provides:
“3. Act 14 of 1947 to apply to working journalists.— (1) The provisions of the
Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall,

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 75
(All.) (Jahangir Jamshed Munir, J.)
subject to the modification specified in sub-section (2), apply to, or in relation to,
working journalists as they apply to, or in relation to, Workmen within the
meaning of that Act.
(2) Section 25-F of the aforesaid Act, in its application to working journalist,
shall be construed as if in Clause (a) thereof, for the period of notice referred to
therein in relation to the Retrenchment of a Workman, the following periods of
notice in relation to the Retrenchment of a working journalist had been
substituted, namely:
(a) six months, in the case of an editor, and
(b) three months, in the case of any other working journalist.”
24. Also, relevant would the provisions of Sections 14 & 15 occurring in
Chapter III of the Working Journalists Act, that read:
“14. Act 20 of 1946 to apply to Newspaper establishments.— The provisions of
the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), as in force
for the time being, shall apply to every Newspaper establishment wherein twenty
or more Newspaper Employees are employed or were employed on any day of
the preceding twelve months as if such newspaper establishment were an
industrial establishment to which the aforesaid Act has been applied by a
Notification under sub-section (3) of Section 1 thereof, and as if a Newspaper
Employee were a Workman within the meaning of that Act.
15. Act 19 of 1952 to apply to Newspaper establishments.— The Employees’
Provident Funds Act, 1952 (19 of 1952), as in force for the time being, shall
apply to every Newspaper establishment in, which twenty or more persons are
employed on any day, as if such newspaper establishment were a factory to
which the aforesaid Act had been applied by a Notification of the Central
Government under sub-section (3) of Section 1 thereof, and as if a newspaper
Employee were an Employee within the meaning of that Act.”
25. A conjoint reading of the aforesaid provisions together with the
preamble of the Act shows that it is statute brought ‘to regulate certain
conditions of service of working journalists and other persons employed in
Newspaper establishments’, to borrow the precise phraseology of the
preamble. The Working Journalists Act is, thus, by no means a wholesome
or a complete legislation, governing or regulating the entire gamut of service
conditions of working journalists and other Newspaper Employees. Section
3 of the Act, under reference, clearly shows that to working journalists, who
are otherwise not Workmen within the meaning of the Central Act, the
provisions of the Central Act have been extended by virtue of sub-section (1)
of Section 3 in the same manner as they apply to Workman, subject to
modifications, detailed in sub-section (2) of Section 3. The effect of Section
3 is that working journalists, as defined under the Working Journalists Act,
who are not otherwise Workmen, would be treated to be so and extended all
benefits available to Workmen under the Central Act, subject to
modifications provided under sub-section (2) of Section 3.

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76 LABOUR LAW NOTES 2021 (1) LLN

26. It must be remarked that so far as working journalists are concerned,

it is not the intendment of Section 3 on a plain reading of the Statute or any
construction of its terms that in their case, the Appropriate Government,
under the Central Act, would be the Central Government alone. Section 3 of
the Working Journalists Act extends application of the provisions of the
Central Act to working journalists as they occur in the latter Statute, subject
to the modifications envisaged under sub-section (2) of Section 3 of the
Working Journalists Act. Now, under the Central Act, it is not in every case
that the Appropriate Government, in relation to Workmen governed by that
Act, is the Central Government alone. Rather, a reading of the definition of
the ‘Appropriate Government’, under Section 2(a)(i) and (ii) would show
that under sub-clause (i) of Clause (a) of Section 2, there are enumerated
specific categories or named Employers in relation to whose Workmen, the
Appropriate Government would be the Central Government. Sub-clause (ii)
of Clause (a) of Section 2 shows it to be a residual Clause, which says that in
relation to any other Industrial Dispute, the State Government would be the
Appropriate Government. A newspaper establishment as defined under
Section 2(d) of the Working Journalists Act or by way of any other
reference, does not find mention in sub-clause (i) of Clause (a) of Section 2
of the Central Act. Thus, a Newspaper establishment would clearly fall
under sub-Clause (ii) of Clause (a) of Section 2, making the Appropriate
Government, in relation to a Newspaper establishment, the State
Government.
27. It is not the Employers’ case that they are a Company in which not
less than 51% of the paid-up share capital is held by the Central Government
or a subsidiary Company set up by a Principal Undertaking or Autonomous
Body owned and controlled by the Central Government. Thus, the case of
the Employers would clearly be governed by sub-clause (ii) of Clause (a) of
Section 2 of the Central Act, where in relation to a working journalist
employed with them, the State Government would the Appropriate
Government under the Central Act. It is, therefore, a fallacious proposition
for the Employers to urge that since working journalists are treated to be
Workmen under the Central Act by virtue of Section 3 of the Working
Journalists Act, the Appropriate Government in case of working journalists
employed with them, would be the Central Government. In the opinion of
this Court, it would be the State Government under the Central Act.
28. The question, however, remains whether a junior plate maker
employed with a Newspaper establishment is a Workman by virtue of
Section 3 of the Working Journalists Act, alone. To the understanding of this
Court, the more pertinent issue would be whether a junior plate maker is at
all a working journalist, and if not, is he still a Workman, either under the
Central Act or the State Act ?

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 77
(All.) (Jahangir Jamshed Munir, J.)
29. A working journalist has been defined under Section 2(f) of the
Working Journalists Act, the terms of which have been extracted above. A
reading of the definition of the working journalist shows that it defines in
substance and in general terms who a working journalist is, and then in the
later part, furnishes illustrative categories of Newspaper Employees, who
would qualify for working journalists. The categories indicated are inclusive
and illustrative; not exhaustive. There is, in the last part of the definition, a
Clause, that would exclude anyone, who qualifies under the first part as a
working journalist from that category.
30. Now, what is to be seen is, whether a plate maker qualifies as a
working journalist, under Section 2(f) of the Working Journalists Act ? A
working journalist is primarily defined as a person whose principal
avocation is that of a journalist, but the word journalist is nowhere defined in
the Statute. Therefore, the import and meaning of the word ‘journalist’ has to
be understood according to its ordinary meaning, falling back for its
definition on extrinsic sources. The Cambridge International Dictionary of
English (published by the Press Syndicate of the University of Cambridge)
defines the word ‘journalist’ as, “a person, who writes news stories or
articles for a Newspaper or magazine, or broadcasts them on radio or
television.” The essence of the avocation of journalism is literary or
intellectual contribution made to print or electronic media in the form of
news, stories, articles or Photographs and the like, in some form or the other.
The specific illustrations in the inclusive list of who a journalist is, under
Section 2(f) of the Working Journalists Act, answer the above description of
a journalist as understood in ordinary parlance. It is, thus, a journalist,
employed, as such, with a newspaper establishment, who alone can qualify
as a working journalist under the Act, last mentioned. The illustrative
categories of Employees are all functionaries, who are bound by a common
thread about their different functions in a newspaper establishment - the
common thread being their literary or intellectual contribution to newspaper
publication, in one way or the other. Clearly, therefore, other functionaries or
Employees working in the Newspaper establishment, who do not qualify for
a journalist, judged on the essence of their function, would not be working
journalist under the Working Journalists Act.
31. A plate maker by the nature of his functions is a technical hand,
engaged in the working of the newspaper press. He has no literary or
intellectual contribution to make to the contents of the Newspaper at all. He
is a part of the technical process of printing. In this connection, the best
evidence to hold that a plate maker is not a working journalist are the
recommendations of the Manisana Wage Board, that was constituted in
September, 1994 by the Central Government in exercise of their powers,
under Sections 9 & 13-C of the Working Journalists Act. The
recommendation of the Manisana Wage Board were accepted by the Central
Government on 25th July, 2000, in exercise of their powers under Section 12

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78 LABOUR LAW NOTES 2021 (1) LLN

of the Act, last mentioned. The recommendations were published in the

Gazette of India Extraordinary, dated 5th & 15th December, 2000. These
recommendations were subject matter of challenge before different High
Courts, but ultimately came to be notified by the Central Government, in the
Gazette of India Extraordinary, dated 14th May, 2019, enforcing the
recommendations of the Wage Board in terms of the two Notifications,
originally accepting them, as these were in force immediately before 1st
February, 2006. The circumstances leading to the first acceptance of the
recommendations of the Manisana Wage Board through the two
Notifications of 5th and 15th December, 2000, the subsequent quashing of
these Notifications, the history of the legal challenges laid and their result,
leading to the eventual acceptance and publication of the Manisana Wage
Board recommendations are detailed in the Gazette of India, dated 14th May,
2019.
32. The Manisana Wage Board Award broadly classifies Employees of
newspaper establishments into three categories. Paragraph 8 of the Wage
Board Recommendations speaks about working journalists in the regular
cadre, to wit, full time Employees in newspaper establishments, whose
details are indicated in the First Schedule to the Wage Board
Recommendations. In the Second Schedule read with Paragraph 8 of the
Wage Board Recommendations, functional definitions of various categories
of working journalists are explained and defined. In the Third Schedule to
the Wage Board Recommendations read with Paragraph 8(2), non-journalist
newspaper Employees, who are administrative staff in the newspaper
establishment find mention with reference to their varying designations.
These non-journalist Employees in the administrative staff are divided into
eight groups, as detailed in the Third Schedule. The Fourth Schedule read
with Paragraph 8(3) of the Wage Board Recommendations, carries a very
detailed list of another category of Employees in the newspaper
establishment, who have been called the ‘Factory Staff’. The Factory Staff
have been classified into seven groups. Three designations of Employees
falling in the category of Factory Staff, mentioned in Group 1-A are Nylo
Plate Maker, Off-Set Plate Maker and Plate Maker (Colour). Likewise, in
Group 2 of the Factory Staff, an Employee designated as Assistant Plate
Maker (Colour) finds place. The note, appended to the Fourth Schedule to
the Wage Board Recommendations, reads thus:
“Note: (1) Any Newspaper Employee employed with any designation different
from those enumerated in the schedules, the doing the same or similar job or
same or similar nature of job of any group in the schedule, shall be deemed to be
a non-journalist in that group.
(2) All categories of Employees mentioned in the schedule may or may not exist
in every class of newspaper establishment.

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 79
(All.) (Jahangir Jamshed Munir, J.)
(3) Categorization of missing category of employment, if any, should be
mutually decided by the Employees and the Management through bilateral
agreement.”
33. To the understanding of this Court, the designation of a Workman as
a ‘junior plate maker’ involves a job similar to that of either the Nylo Plate
Maker or Offset Plate Maker or Plate Maker (Colour) or Assistant Plate
Maker (Colour), detailed in Groups 1-A & 2 of the Fourth Schedule to the
Wage Board recommendations. No suggestion to the contrary has come from
the Employers, which may show that a ‘junior plate maker’ is not part of the
Factory Staff, as classified by the Manisana Wage Board. The classification
of plate makers of different kinds as factory staff by the Manisana Wage
Board, makes it explicit that the Workman is not a working journalist, within
the meaning of the Working Journalists Act.
34. The question, “whether the Katibs are working journalists under the
definition of “calligraphists” as prescribed by the Wage Board and whether
they are entitled to rates of Wages as prescribed for calligraphists under
Government Notification No.80-3883, dated the 26th October, 1967, and if
so, what directions are necessary in this respect ?” was the precise reference
made to the Labour Court, that travelled to the Supreme Court, and fell for
their Lordships’ decision in the Management of the Daily Pratap v. Their
Katibs, 1972 (2) SCC 342. Since the word, ‘Katib’ did not find place in the
recommendations of the Wage Board, their Lordships examined the
conclusions based on evidence and the law, recorded by the Labour Court
that the nature of the ‘Katibs’ work was journalistic. The Katibs satisfied the
requirements of the definition of “calligraphists” carried in the Wage Board
Recommendations. There was still some contention before their Lordships as
to whether the principal avocation of a calligraphist is that of a journalist, so
as to satisfy the test of Section 2(f) of the Working Journalists Act. The said
question was answered in Daily Pratap (supra) thus:
“23. It needs no explanation to say that the above reading will not be a very
happy one. When once the Wage Board has given the definition of a
Calligraphist and included persons coming under that category in the definition
of a “working journalist” the only test to be applied will be whether the person
concerned satisfied the requirements of the definition given by the Wage Board.
We have already referred to the fact that it is no longer open to the Appellant to
question the jurisdiction of the Wage Board when it included Calligraphists in
the definition of “Working Journalist”. Once the jurisdiction of the Wage Board
is conceded, the approach to be made is only to find out whether a person, who
claims to be a Calligraphist satisfies the definition as given by the Wage Board.
No doubt the definition of Calligraphist will have to be read along with the
definition of “Artist” given by the Wage Board. We have already held that the
Labour Courts’ finding that Katibs are Artists as defined by the Wage Board is
correct.”

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80 LABOUR LAW NOTES 2021 (1) LLN

The present case does not involve an issue where the Wage Board
Recommendations do not at all refer to plate makers and their identity has to
be correlated with some other descriptions of employment, as in the case of
the Katibs. Four different kinds of plate makers have been described by the
Manisana Wage Board, as factory staff in the newspaper establishment.
Applying the principle in Daily Pratap (supra), it is safe to assume that the
classification of plate makers of whatever kind is that of Factory Staff, who
are not journalists in the Newspaper establishment.
35. In fact, the title of the Act and its preamble clearly indicate that it
applies both to working journalists and other persons employed in the
Newspaper establishment. Section 3(1) of the Working Journalists Act,
however, extends the application of the Central Act to working journalists
alone, providing that the Central Act would apply to working journalist in
the same manner as it would apply to Workmen within the meaning of the
last mentioned Act. But, does that mean that the Central Act or for that
matter the State Act, would not apply to other Employees, even if they
otherwise qualify for Workmen under those Statutes. This Court does not
think so. Clearly, going by the nature of duties of the Workman and the
Wages drawn by him, he qualifies for a Workman under Section 2(f) of the
Central Act and also under Section 2(z) of the State Act.
36. It has not at all been seriously disputed by the Employers that a
Newspaper establishment would not be ‘industry’ within the meaning of
Section 2(j) of the Central Act or under Section 2(k) of the State Act. The
Workman would, therefore, qualify for a ‘Workman’, both under the Central
Act and State Act, de hors the provisions of the Working Journalists Act.
37. The view that this Court takes finds support in a Division Bench
decision of the Orissa High Court in Pratap Chandra Mohanti v. General
Manager, United News of India and another, 1993 Lab IC 919, In Pratap
Chand Mohanti (supra) speaking for the Division Bench, B.L. Hansaria,
C.J. (as His Lordship then was) held:
“11. We have duly considered the aforesaid submission of Sri Mohanty and,
according to us, it would be difficult to say that the benefit of the Industrial
Dispute Act would not be available to Newspaper Employees other than working
journalists even if they be Workmen within the meaning of that Act. As to S.
3(1) of the Working Journalist Act, we would say that the provision in that
Section making the Industrial Disputes, Act applicable to working journalists
cannot be taken to be that the said Act would not apply to other newspaper
Employees. Section 3(1) might have been enacted to make it abundantly clear
that the Industrial Disputes Act would apply to working journalists even if they
may not satisfy the definition of “Workman” as given in the Industrial Disputes
Act. It is worth pointing out in this connection that a working journalist as
defined in Section 2(f) of the Working Journalists Act may not be a “Workman”
if the definition of that expression as given in the Industrial Disputes Act were to
apply to him. The Legislature, however, wanted the benefits of the Industrial

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 81
(All.) (Jahangir Jamshed Munir, J.)
Disputes Act to be made available to working journalists and it is perhaps
because of this that Section 3(1) was inserted in the Act. This apart, reference to
Section 3(1) shows that certain modifications were made in the provisions of the
Industrial Disputes Act in their application to working journalists. We do not
think if we would be justified in denying the benefits of a Statute as important as
the Industrial Disputes Act to other categories of Newspaper Employees, if
otherwise they be Workmen within the meaning of that Act, because of what has
been provided in Section 3(1) of the Working Journalists Act.
12. As to the application of the two specific Acts to Newspaper Employees
because of what has been provided in Sections 14 & 15 of the Working
Journalists Act, we would say that these two Sections were enacted to make the
two Acts in question applicable to Newspaper establishments because de hors
these provisions, those Acts might not have applied to such establishments. The
Legislature, however, wanted to give the benefit of those Acts to all Newspaper
Employees. It may be pointed out that Sections 14 & 15 have referred to the
application of the two Acts in question to “every Newspaper establishment” and
not to “Newspaper Employees.” Of course, by making these two Acts applicable
to all Newspaper establishments, the benefits of the same were conferred on all
Newspaper Employees. This does not mean that the Legislature wanted to rob
the Newspaper Employees of the benefits of other Acts. According to us, no such
conclusion can be drawn on the basis of what has been provided in Sections 14
& 15 of the Working Journalists Act.”
38. The Workman in this case is, therefore, a Workman, both under the
Central Act and the State Act as he satisfies the definition of a Workman
under both the Statutes, independent of the provisions of the Working
Journalists Act. The Employers here being not an industry carried on by or
under the authority of the Central Government or one, who fall under any of
the specified categories or named establishment, authorities or bodies,
mentioned under Section 2(a)(i) of the Central Act, the Appropriate
Government would be the State Government in accordance of the provisions
of Section 2(a)(ii) of the Act, last mentioned. Accordingly, reference of the
dispute under Section 4-K of the State Act is valid and competent. Since the
reference under Section 4-K of the State Act is competent, the further
question, “Whether the Labour Court/Industrial Tribunal constituted under
the Central Act alone is competent to answer a reference in relation to the
Workman?” is not required to be answered.
39. Now, turning to the other question, that relates to the jurisdiction of
the Labour Court as a Court of the referred jurisdiction, the contention of the
learned Counsel for the Employers is that the Labour Court has no
jurisdiction to go into the validity or question of closure on a reference about
termination, that does not refer to closure. His submissions on the point have
been noticed hereinbefore. The learned Counsel for the Workman, on the
other hand, submits that the reference is cast in terms wide enough to clothe
the Labour Court with jurisdiction to examine whether the closure is mere
sham and a camouflage to terminate the Workman’s services. This legal

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82 LABOUR LAW NOTES 2021 (1) LLN

issue, according to Mr. Sharma, learned Counsel for the Workman, is to be

examined in the Foreshadow of the fact that it is not a case where the entire
Unit of the Employers has been closed down. It is a case where a particular
Department, to wit, the process Department, has been allegedly closed on
account of introduction of a new technology. The new technology is a C.T.P.
Machine, which according to the Employers has done away with the process
of manual plate making. The Employers say that the C.T.P. Machine is a
computerized machine, that has rendered the process Department
dysfunctional. It is on that account that the Workman along with a total of
six others, circumstanced like him, have had their services dispensed with.
40. Learned Counsel for the Workman submits that the Labour Court has
found on the basis of evidence that the ‘process’ is an intermediate step in
the publication of a Newspaper. Formerly, the process involved was that
after finalization of layout of an issue, the process Department made an
aluminium plate thereof which was utilized in printing the Newspaper. All
that the C.T.P. Machine has done is that in substitution of manual plate
making, the job is done employing the Machine. The Labour Court has
concluded that the work of plate making, that was formerly done, is still
being done after installation of the C.T.P. Machine. The C.T.P. Machine is
operated by a man. As such, plate making still involves employment of
manpower. The Labour Court has concluded that evidence clinchingly
shows that whatever work was done in the process Department, involving
plate making, continues to be done after the installation of the C.T.P.
Machine; the method alone has changed. Plates are still made. The Labour
Court has finally concluded that on account of installation of the C.T.P.
Machine, the entire work of the process Department has not come to an end.
It has further been held that if the process Department were to be held an
undertaking (of the Employers), the undertaking has not closed; the method
of operation has changed. Mr. Sharma emphasizes that the Labour Court has
concluded, after a very detailed analysis of evidence, particularly, regarding
other Units of the Employers, where the same C.T.P. Machine has been
installed with retention of existing Employees in the process Department of
those Units, that the closure is a camouflage to terminate the Workman’s
services of 17 years and more; it constitutes retrenchment. Learned Counsel
for the Workman urges that termination of services of the Workman, that is
essentially Retrenchment and not a bona fide closure of the Employers’ Unit
or a part thereof or an undertaking of theirs, could well be examined on the
terms of the reference made to the Labour Court. He submits, to add, that the
word ‘Termination’ is a word of wide import, that would take within its fold
any kind of determination of employment, including closure.
41. In support of his contention, learned Counsel for the Workman has
placed reliance upon a decision of this Court in Triveni Glass Ltd. v. State of
U.P. and others, 2008 (3) All LJ 420. In that case, on the basis of a
settlement between the Employers and their Workmen, the dispute referred

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 83
(All.) (Jahangir Jamshed Munir, J.)
to arbitration of the Deputy Labour Commissioner, under Section 5-B of the
State Act was in terms whether the termination of services of 50 Workmen
of Plant No.1 was justified or legal, and if not, to what relief, the Workmen
were entitled. The Employers had pleaded closure. The Arbitrator found that
the services of the Workmen were terminated on account of illegal closure of
Plant No.1 without securing permission of the State Government, under
Section 6-W read with Section 6-V of the State Act. The Arbitrator awarded
reinstatement with full Back Wages. One of the grounds of challenge to the
Award of the Arbitrator was that he had travelled beyond the reference and
decided the validity of closure, which was not a question referred to him.
Certain decisions of their Lordships of the Supreme Court were relied on by
the learned Counsel for the Employers in that case to fortify his stand that
the Arbitrator could not have gone into the validity of closure while
answering a reference, that spoke of termination alone. It is pointed out by
the learned Counsel for the Workman that this Court in Triveni Glass Ltd.,
(supra) repelled the said contention and held:
“6. The Petitioner’s Counsel submitted that the Arbitrator has decided the
question of validity of the closure, which was not a question referred to him nor
was the closure ever challenged before any forum. In support of his contention
that the Arbitrator cannot decide an issue, which has not been referred to him,
reliance was placed by the learned Counsel upon three decisions: (1) Firestone
Tyre & Rubber Co. of India (P) Ltd. v. Workmen Employed rep. by Firestone
Tyre Employee’s Union, 1981 (3) SCC 451: AIR 1981 SC 1626 (Para 9)], (2)
Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd., 19789 (10 LLN 336
(SC) : 1979 (3) SCC 762 : AIR 1979 SC 1356 (Para. 11)] and Delhi Cloth and
General Mills Co. Ltd. v. Workmen, AIR 1967 SC 469 (Para 9)]
7. What has been held in these decisions by the Apex Court is that the Tribunal is
required to confine its decision to the points of reference and matters incidental
to them. In the Firestone Tyre & Rubber Co. of India (P) Ltd. Case 1981 (3)
SCC 451: AIR 1981 SC 1626) (supra) the dispute about the validity of the
dismissal from service of the Workmen was referred and it was held that the
Tribunal acted beyond the terms of reference when it considered the question of
Unfair Labour Practice or discrimination by the Employers in reinstating some of
the Workmen. The Apex Court held that this subsequent act of reinstatement of
the Workmen was irrelevant for adjudging the validity of the earlier dismissal
and when no issue on the alleged discrimination had been framed. In Pottery
Mazdoor Panchayat (supra) case 1979 (3) SCC 762: AIR 1979 SC 1356) it was
held that the Tribunal was not entitled to enter into the question as to the fact of
closure when the reference was whether the closure was proper and justified. In
the D.C.M. Case, AIR 1967 SC 469) (supra) it was held that where the dispute
referred was whether the strike and the sit down strike were legal or justified the
Tribunal had to proceed on the footing that there was a strike and sit down strike
and it could not go into the question whether there was or was not a strike or a sit
down strike. It was held that the Tribunal could not enlarge the scope of the
reference. In the present case the terms of reference are very wide. It is in three
parts viz., (i) whether the termination of the services of the Workmen was legal,

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84 LABOUR LAW NOTES 2021 (1) LLN

(ii) whether the termination of the services of the Workmen was justified and
(iii) what relief, if any, to which the Workmen were entitled to.
8. The expression ‘Termination’ is wide enough to cover every kind of
termination of the services of an Employee whether on account of dismissal or
by way of Retrenchment or by way of closure. The dictionary meaning of the
word ‘termination’ in the New Lexicon Webster’s Dictionary of the English
Language is as follows:
“Termination - n.a terminating or being terminated if the end something in
space or time, at the termination of the examination, (gram.) the final sound,
letters or syllable of a word [fr. L. termination (terminations)]”
9. The terms of reference relating to the termination of the services of the
Workmen is therefore wide enough to cover every kind of termination of
services including termination of services by way of closure and it was therefore
open to the Arbitrator to enter into the question of legality of the closure for
answering the reference. In Agra Electric Supply Company Ltd., Agra v.
Workmen, 1983 SCC (L & S) 210, one of the contentions advanced was that the
terms of reference did not cover the question of payment of gratuity and
therefore the Award of the Tribunal was bad. Dealing with the contention, the
Apex Court held in Para 2 of the Judgment which is as follows:
“2. It is useful to examine the terms of reference. There are two disputes and
two references, but it is enough if one of them is reproduced:
Whether the Employers have retired their Workmen Sri Peerbux (son of Sri
Inam Bux) Bank Peon and Sri Sahadat Ali (son of Sri Banne Ali) Coolie,
Maintenance Department, by their Orders, dated May 30, 1970 (copies
attached) in a justified and/or legal manner ? If not, then to what benefit/
Compensation are the Workmen entitled and with what details ?
It is plain that Industrial jurisprudence is an alloy of law and social justice,
and one cannot be too\pedantic in constructing the terms of a. reference
respecting a dispute for Industrial adjudication. Liberally viewed, we are left
with the impression that the Tribunal’s construction of the terms of reference
is correct. The question referred may be dichotomized. Was the Retirement
of the Workmen legal and justified? If not, what Compensation was payable
to them ? The first limb of the reference contains the pregnant impression
“justified”. It is one thing to say, speaking in terms of industrial jurisprudence
that an action is legal. It is another thing to say that it is justified. When the
reference is Comprehensive enough to cover both these concepts, it is within
the jurisdiction of the Tribunal to investigate into whether the Retirement is
legal and, if legal, whether it is also justified. In the ordinary law of contracts,
when a thing done is legal there is an end of the matter but in industrial law
the rigid rules of contract do not govern the situation and an amount of
flexibility in the exercise of powers taking liberties with the strict rights of
parties is permitted to Tribunals. Relying on a series of decisions of this
Court for this wider ambit of jurisdiction permissible in industrial
adjudication, the Tribunal has held that the grievance of the Workmen that
their services should come an end by way of Retirement without payment of
gratuity in real and substantial and that pragmatic considerations justify a
direction for payment of Gratuity more or less prevalent in many industries in

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 85
(All.) (Jahangir Jamshed Munir, J.)
this region. This approach is informed by social direction for payment of
Gratuity. We read the Award in a composite and Comprehensive sense as an
Award that the Retirement is justified if it is accompanied by payment of
Gratuity. The dissection attempted in the submission made by learned
Counsel is a distortion of the true intendment of the award. In this view, we
think there is no substance in the first contention”
10. In State Bank of India v. N. Sundra Money, 1976 (32) FLR (SC) 197 : 1976
(1) SCC 822 : AIR 1976 SC 1111) while considering the case of Retrenchment
under Section 2(oo) of the Industrial Disputes Act, 1947 the Apex Court held as
follows:
“A break-down of Section 2(oo) unmistakably expands the semantics of
Retrenchment. Termination for any reason whatsoever are the key words.
Whatever the reason, every termination spells retrenchment. So the sole
question has the Employee’s service been terminated? Verbal apparel apart, the
substance is decisive. A termination is where a term expires either by the active
step of the master or the running out of the stipulated term. To protect the weak
against the strong this policy of Comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the Employer, but
the fact of termination however produced, may be, the present may be a hard
case, but we can visualize abuses by Employers, suitable verbal devices,
circumventing the armor of Section 25-F and Section 2(oo).”
11. For the purpose of deciding whether the termination of the services of the
Workmen in this case was legal, the Arbitrator could therefore have gone into
the question whether the closure was legal or not if the services of the Workmen
had been terminated on account of closure. As to whether termination of the
Workmen’s services was the direct result of closure is a question, which can be
answered with reference to the pleadings of the parties relating to the nature of
the dispute between them.” (Emphasis by Court)
42. This Court has carefully considered the submissions advanced by
learned Counsel for both parties. It is true that the expression ‘termination’ is
a word of wide import and termination of a Workman’s services, in whatever
manner effected, would constitute Retrenchment under the State Act as well
as the Central Act, except those specific classes or contingencies of
termination, which the Statute excludes from the definition of Retrenchment.
Retrenchment is defined under Section 2(s) of the State Act, which reads as
follows:
“Section 2. Definitions.—
(s) ‘Retrenchment’ means the termination by the Employer of the service of a
Workman or any reason whatsoever, otherwise than as punishment inflicted by
way of disciplinary action, but does not include—
(i) Voluntary Retirement of the Workmen; or
(ii) Retirement of the Workmen on reaching the age of Superannuation if the
contract of employment between the Employer and Workman concerned
contains a stipulation in that behalf;”

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86 LABOUR LAW NOTES 2021 (1) LLN

43. The question, whether on a reference about the validity of termination

of services of the Workman, made under Section 4-K of the State Act, the
validity or the issue of closure, could be examined, fell for consideration of
this Court in Mohd. Sarwar v. State of U.P. and others, 2013 (6) AWC
6169. This Court in Mohd. Sarwar (supra) held:
“17. In order to appreciate the rival stand of the learned Counsel for the parties, it
would be appropriate to refer to certain provisions of the U.P. Industrial Disputes
Act. Section 2(s) defines “Retrenchment” as under:
“(s) ‘Retrenchment’ means the termination by the Employer of the service of a
Workman for any reason whatsoever, otherwise than as punishment inflicted
by way of disciplinary action, but does not include—
(i) Voluntary Retirement of the Workmen; or
(ii) Retirement of the Workmen on reaching the age of Superannuation if the
contract of employment between the Employer and Workman concerned
contains a stipulation in that behalf;
18. Section 6-N of the U.P. Industrial Disputes Act provides a procedure for
Retrenchment of Workman, which is extracted herein under:
“6-N. Conditions precedent to Retrenchment of Workmen.— No Workman
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
Workman has been paid in lieu of such notice Wages for the period of the
notice;
Provided that no such notice shall be necessary if the Retrenchment is under
an agreement which specifies a date for the termination of service;
(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 service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the State Government.”
19. Section 6-W of the U.P. Industrial Disputes Act provides procedure for
closure of an undertaking, which is also extracted hereunder: (quotation omitted)
20. The definition of “Retrenchment” is divided into two parts. The first part lays
down that “Retrenchment” means the termination of the services of a Workman
by the Employer for any reason whatsoever otherwise than by way of
punishment inflicted by way of a disciplinary action. The second part of the
definition further excludes Voluntarily Retirement of the Workman or
Retirement on reaching the age of Superannuation.
21. The words “for any reason whatsoever” would include termination on
account of closure of the establishment is no longer res integra and this issue has
been decided by a Constitutional Bench of the Supreme Court.

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 87
(All.) (Jahangir Jamshed Munir, J.)
22. In Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills’ Mazdoor Union, 1957
(1) LLJ 235, the Supreme Court dealt with the question whether the discharge of
the Workman on the closure of the undertaking would constitute Retrenchment
or not and whether the Workmen were entitled for Retrenchment Compensation.
The Supreme Court observed:
“But Retrenchment connotes in its ordinary acceptation that the business itself
is being continued but that a portion of the staff or the Labour force is
discharged as surplusage and the termination of services of all the Workmen as
a result of the closure of the business cannot, therefore, be properly described
as Retrenchment.”
23. Based on these observations, the Constitutional Bench of the Supreme Court
in Hariprasad Shiv shankar Shukla v. A.D. Divelkar, AIR 1957 SC 121,
explained further the meaning of the word “Retrenchment” as defined under
Section 2(oo) of the Industrial Disputes Act, which is more or less the same as
defined under Section 2(s) of the Act. The Supreme Court observed that the
expression “for any reason whatsoever” though wide must necessary draw within
its ambit, not any act of commission and omission on the part of the Employers,
but the concept of termination of the surplus workers’ services due to reason
such as economy rationalisation in industry, installation of new Labour saving
machinery or devices, standardisation or improvement of plant or technique or
the like.
24. The Supreme Court held that the words “for any reason whatsoever” must be
read and construed as such. The Supreme Court after considering the definition
of “Retrenchment” as defined under Section 2(s) of the Act concluded that the
entire scheme of the Act to give the definition clause relating to “Retrenchment”
such a meaning as would include within the definition termination of services of
all Workman by the Employers when the business itself ceases to exist, meaning
thereby that “Retrenchment” means discharge of surplus Workmen in an existing
or continuing business and does not include “Retrenchment” of workers on a
bona fide closure of business. The Supreme Court, accordingly, held:
“For ‘the reasons given above, we hold, contrary to the view expressed by the
Bombay High Court, that Retrenchment as defined in Section 2(oo) and as
used in Section 25-F has no wider meaning than the ordinary, accepted
connotation of the word: it means the discharge of surplus Labour or Staff by
the Employer for any reason whatsoever, otherwise than as a punishment
inflicted by way of Disciplinary Action, and it has no application where the
services of all Workmen have been terminated by the Employer on a real and
bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where
the services of all Workmen have been terminated by the Employer on the
business or undertaking being taken over by another Employer in
circumstances like those of the Railway Company.”
25. Pursuant to the decision in Hari Prasad’s case, AIR 1957 SC 121 (supra) the
Legislature amended the Industrial Disputes Act by Amending Act No.18 of
1957 and incorporated the present Sections 25-F & 25-FFF of the Industrial
Disputes Act, which made provisions for notice and for payment of
Compensation or payment of Wages in lieu of notice and Compensation to be
given to a Workman discharged from service on a transfer or closure of an

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88 LABOUR LAW NOTES 2021 (1) LLN

Industrial undertaking as if the Workman had been retrenched. Similar

provisions of Sections 6-N & 6-W was also incorporated under the U.P.
Industrial Disputes Act, but, the definition Clause 2(s) of the of the U.P.
Industrial Disputes Act or 2(oo) of the Industrial Disputes Act was not amended.
Consequently, this Court is of the opinion, that even after the amendment of the
Act by the Amendment Act, 1957, the interpretation of “Retrenchment” as given
by the Supreme Court in the Constitution Bench decision in Hari Prasad case
(supra) remains the same, which means that Retrenchment necessarily postulate
termination of the Employees service in an existing running industry and that
Retrenchment does not postulate Retrenchment where there has been a valid
closure of an undertaking or an establishment.
26. This view of mine is fortified by a decision of the Supreme Court in H.P.
Mineral and Industrial Development Corporation Employees’ Union v. State of
H.P., 1996 (7) SCC 139, wherein the Supreme Court observed that in view of the
fact that Section 25(O) of the Industrial Disputes Act (relating to closure) had
been struck down and the amended provision had not come into existence and
was not in operation on the day of the closure of the industry, the workers could
not invoke the protection of Section 25-N of the Industrial Disputes Act, (which
relates to Retrenchment Compensation) and that the only protection that was
available to them was that contained in Sections 25-FFA & 25-FFF, which
relates to payment of closure Compensation. The Supreme Court observed:
“We are unable to accept this contention. It is no doubt true that in Section
2(oo) the expression ‘Retrenchment’ is defined to mean the termination by the
Employer of the service of a Workman for any reason whatsoever otherwise
then as a punishment inflicted by way of Disciplinary Action and categories
referred to in Clauses (a) to (c) have been expressly excluded from the ambit of
the said definition. But as far back as in 1957 a Constitution Bench of this
Court in Hariprasad Shiv shankar Shukla v. A.D. Divikar had laid down that
‘Retrenchment’ under Section 2(oo) of the Act would not cover termination of
services of all Workmen as a result of the closure of the business. The said
decision was considered by the Constitution Bench of this Court in Punjab
Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour
Court, 1990 (3) SCC 682), wherein it has been observed SCR (pp. 140-42, 143
& 152-53: SCC pp. 709, 710 & 718-19, Para’s 52, 53 & 76).
... ... ...
Mr. V.A. Bobde submits, and we think rightly, that the sole reason for the
decision in Hariprasad was that the Act postulated the existence and
continuance of an Industry and where the Industry i.e., the undertaking, itself
was closed down or transferred, the very substratum disappeared and the Act
could not regulate industrial employment in the absence of an industry. The
true position in that case was that Sections 2(oo) and 25-F could not be invoked
since the undertaking itself ceased to exist.
... ... ...
The Judgments in Sundara Money, 1976 (1) SCC 822: AIR 1976 SC 111)
(supra) and the subsequent decisions in the line could not be held to be per
incuriam inasmuch as in Hindustan Steel 1976 (4) SCC 222: AIR 1977 SC 31,
and Santhosh Gupta’s cases, 1980 (3) SCC 340: AIR 1980 SC 1219), the

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 89
(All.) (Jahangir Jamshed Munir, J.)
Division Benches of this Court had referred to Hariprasad’s case and rightly
held that its ratio did not extend beyond a case of termination on the ground of
closure and as such it would not be correct to say that the subsequent decisions
ignored a binding precedent.
and further held—
“From the aforementioned observations it is evident that the definition of
“Retrenchment” as defined in Section 2(oo) of the Act has to be read in the
context of Section 25-FF and 25-FFF of the Act and if thus read
‘Retrenchment’ under Section 2(oo) does not cover termination of service as a
result of closure or transfer of an undertaking though such termination has been
assimilated to Retrenchment for certain purposes, namely, the Compensation
payable to the Workmen whose services are terminated as a result of such
closure. In that view of the matter Section 25-N, which deals with
Retrenchment cannot apply to the present case where termination of the
services of the Workmen was brought about as a result of the closure of the
undertaking.”
27. In the light of the aforesaid, it is clear that the words “for any reason
whatsoever” in Section 2(s) of the Act does not include closure of an
establishment and, consequently, termination of the services of the Workman on
account of closure of an establishment does not amount to Retrenchment.
29. The reference order is clear and explicit, namely, whether the Employer’s
were justified in terminating the services of the Workman. The validity and
legality of the Order of Termination was referred to the Labour Court. It was
urged that the validity and legality of the closure of the establishment can also be
considered and looked into by the Tribunal while deciding the validity and
legality of the Order of Termination under the referring order. According to the
Petitioner, this is an incidental question, which can be considered and that the
powers of the Tribunal is wide enough to decide such question while moulding
the reliefs.
30. In this regard before the proceeding further, the provisions of Section 4-K of
the U.P. Industrial Disputes Act be looked into and compared with the provisions
of Section 10 and Section 10(4) of the Industrial Disputes Act. For facility,
Section 4-K of the U.P. Industrial Disputes Act is extracted hereunder:
“4-K. Reference of disputes to Labour Court or Tribunal.— Where the State
Government is of opinion that any Industrial Dispute exists or is apprehended,
it may at any time by order in writing refer the dispute or any matter appearing
to be connected with, or relevant to, the dispute to a Labour Court, if the matter
of Industrial Dispute is one of those contained in the First Schedule, or to a
Tribunal if the matter of dispute is one contained in the First Schedule or the
Second Schedule for adjudication.
Provided that where the dispute relates to any matter specified in the Second
Schedule and is not likely to affect more than one hundred Workmen, the State
Government may, if it so thinks fit, make the reference to a Labour Court.”
31. A perusal of the aforesaid indicates that the State Government may by an
order in writing refer the dispute or any matters appearing to be connected with
or relevant to the dispute. The language of Section 4-K of the Act is very clear,

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90 LABOUR LAW NOTES 2021 (1) LLN

namely, that the dispute has to be referred in writing so that parties are aware of
the terms of the referring order and the Tribunal is aware of its jurisdiction to
decide the matter. It is settled law that the Tribunal gets the power from the
reference order and that it cannot travel beyond the referring order. Therefore,
the dispute is required to be referred or any matter, which is connected or
relevant to the main dispute is also required to be referred in writing.
33. Section 10 of the Industrial Disputes Act indicates that the State Government
can refer a dispute by an order in writing for adjudication to the Labour Court or
Tribunal. Section 10(4) of the Industrial Disputes Act further provides that where
the referring order has specified the points of dispute for adjudication, the
Labour Court or the Tribunal shall confine its adjudication to those points and
matters incidental thereto. The words “matters incidental thereto” is not specified
under Section 4-K of the U.P. Industrial Disputes Act.
34. In Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd. and another,
19789 (10 LLN 336 (SC) : AIR 1979 SC 1356, the Supreme Court while
considering the provision of Section 10(4) of the Industrial Disputes Act held
that the jurisdiction of the Tribunal in Industrial Dispute is limited to the point
specifically referred for its adjudication and to matters incidental thereto and that
the Tribunal could not go beyond the terms of the reference order. The Supreme
Court went on to hold, that in the instant case, the terms of the reference showed
that the points in dispute between the parties was not the fact of closure of its
business by the Employers and that the reference was limited to the narrow
question as to whether the closure was proper and justified. The Tribunal by the
very terms of the reference order had no jurisdiction to go behind the fact of
closure and inquire as to whether the business was in fact closed down by the
Management.
35. In Firestone Tyre & Rubber Co. of India (P) Ltd., AIR 1981 SC 1626, the
Supreme Court again held that the Tribunal could not travel outside the terms of
the referring order.
36. In the light of the aforesaid, the Court is of the opinion, that the Tribunal was
justified in holding that since the validity and legality of the closure of the
establishment was not specified as a point of dispute to be adjudicated in the
referring order, the Tribunal was justified in not adjudicating the same.....”
44. This Court in Triveni Glass Ltd. (supra) did consider the Pottery
Mazdoor Panchayat v. Perfect Pottery Co. Ltd., 19789 (10 LLN 336 (SC) :
1979 (3) SCC 762 as well as the Firestone Tyre & Rubber Co. of India (P)
Ltd. v. Workmen Employed rep. by Firestone Tyre Employee’s Union,
1981 (3) SCC 451, and distinguished the same about their application to the
issue in hand. The decision of this Court in Triveni Glass Ltd. (supra) was
not brought to the notice of the Court in Mohd. Sarwar (supra). The
reasoning on which the decision of this Court in Triveni Glass Ltd. (supra)
has proceeded is that the reference being whether termination of services of
the Workman in that case was legal, the Arbitrator there could go into the
question whether the closure was legal or ‘if the services of the Workman
had been terminated on account of closure’, to borrow the words of His
Lordship in Triveni Glass Ltd. (supra). The Court, in the decision under

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 91
(All.) (Jahangir Jamshed Munir, J.)
reference, went ahead to hold that the question, whether termination of
services was a direct result of closure, is a question that could be answered
with reference to pleadings of parties about the nature of the dispute between
them.
45. The decision of the Constitution Bench in Hariprasad Shivshanker
Shukla and another v. A.D. Divelkar and others, AIR 1956 SC 121 relied
upon by this Court in Mohd. Sarwar arose in the context of facts, where in
one Appeal, the entire undertaking of the Employer had been transferred,
and in the other, it had been closed down. In both cases, the Workmen had
moved the Authority under the Payment of Wages Act, claiming
Retrenchment Compensation, under Clause (b) of Section 25 of the Central
Act. The Workmen failed before the Authority under the Payment of Wages,
in one case on the question of jurisdiction, but with two issues about their
entitlement to Retrenchment Compensation under Section 25 of the Act,
being decided in their favour. In the other case, the Authority under the
Payment of Wages Act decided on all issues against the Workmen, including
jurisdiction and their entitlement to receive Retrenchment Compensation,
under Clause (b) of Section 25-F of the Central Act. On Writ Petitions being
filed, in the case related to the Railway Company, which was one about the
Employer’s undertaking being transferred, the High Court held that the
Payment of Wages Authority had jurisdiction and also that the Workmen
were entitled to claim Compensation, under Clause (b) of Section 25 of the
Central Act. In the other case, that relates to Shri Dinesh Mills Ltd., where
the Workmen had failed on all issues, the High Court set aside the order of
the Payment of Wages Authority, with a direction to dispose of the
application, under the Payment of Wages Act made to him, in accordance
with law. Certificate of fitness was granted in both matters by the High
Court, on the strength whereof Appeals were carried to the Supreme Court.
Their Lordships of the Supreme Court reversed the Bombay High Court, and
about the issue in hand, held:
“19. For the reasons given above, we hold, contrary to the view expressed by the
Bombay High Court, that Retrenchment as defined in Section 2(oo) and as used
in Section 25-F has no wider meaning than the ordinary, accepted connotation of
the word: it means the discharge of surplus Labour or Staff by the Employer for
any reason whatsoever, otherwise than as a punishment inflicted by way of
Disciplinary Action, and it has no application where the services of all Workmen
have been terminated by the Employer on a real and bona fide closure of
business as in the case of Shri Dinesh Mills Ltd. or where the services of all
Workmen have been terminated by the Employer on the business or undertaking
being taken over by another Employer in circumstances like those of the Railway
Company. Mr. Mehta, appearing for Respondents Nos.4 & 5 in Civil Appeal
No.105 of 1956, tried to make a distinction between transfer of ownership with
continuation of employment (which according to him did not come within the
definition) and Termination of service on closure of business. There is in fact a
distinction between transfer of business and closure of business; but so far as the

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92 LABOUR LAW NOTES 2021 (1) LLN

definition Clause is concerned, both stand on the same footing if they involve
termination of service of the Workmen by the Employer for any reason
whatsoever, otherwise than as a punishment by way of Disciplinary Action. On
our interpretation, in no case is there any Retrenchment, unless there is discharge
of surplus labour or staff in a continuing or running industry.”
46. It must be borne in mind that the decision of the Supreme Court in
Hariprasad Shivshanker Shukla is not about the issue, whether in a
reference regarding the legality and justifiability of a termination, the
validity of closure can be examined by the Labour Court. It is about the issue
whether closure constitutes Retrenchment, as defined under Section 2(oo)
and the subject matter of Section 25-F of the Central Act. The principle laid
down by their Lordships is that, “where the services of all Workmen have
been terminated by the Employer on a real and bona fide closure of
business..... or where the services of all Workmen have been terminated by
the Employer on the business or undertaking being taken over by another
Employer....”, it is not Retrenchment under the Central Act. The principle is
stated further, in its most fundamental form, by their Lordships in
Hariprasad Shivshanker Shukla (supra) holding: “On our interpretation, in
no case is there any retrenchment, unless there is discharge of surplus labour
or staff in a continuing or running industry.” The principle laid down by the
Constitution Bench in Hariprasad Shivshanker Shukla (supra) comes to no
more than this that wherever on account of a bona fide closure of the
Employer’s business or a transfer of undertaking, his business is no longer a
continuing or running industry in his hands, the resultant termination of
services of Workmen is not Retrenchment within the meaning of Section
2(oo) or 25-F of the Central Act.
47. But, there is no proposition, in the opinion of this Court, deducible
from the holding in Hariprasad Shivshanker Shukla that a closure of the
Employer’s establishment, which is a mere sham, camouflage or facade, to
get rid of a particular Workman or some of them, while his business as a
whole survives or the part of it, where the concerned Workman was
employed, subsists in the same or some altered form, it would still not be
Retrenchment. If a mere sham or facade of closure is not Retrenchment,
there is not the slightest reason to hold that on a reference that speaks about
validity of termination of the Workman’s services or its justifiability, the
Labour Court cannot go into the limited question whether it is a bona fide
closure or a mere facade to terminate employment.
48. This, however, does not mean that on a reference about the legality or
justifiability of termination of services of a Workman, the legality of a bona
fide closure can be examined by the Labour Court. If the closure is bona fide
and there is some illegality about it, like violation of Section 6-W of the
State Act or Section 25-FFA or 25-FFF or 25-O of the Central Act, a claim
about illegality of that kind with the closure of an undertaking, resulting in
termination of a Workman’s services, cannot be gone into in a reference that

Labour Law Notes / January-2021

January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 93
(All.) (Jahangir Jamshed Munir, J.)
does not specifically spell out legality or justifiability of closure in its terms.
It certainly cannot be gone into in a case where the reference is limited to the
validity and justifiability of termination of services alone.
49. No different principle is discernible from the decision of the Supreme
Court in H.P. Mineral & Industrial Development Corporation Employees’
Union v. State of H.P. and others, 1996 (7) SCC 139. This was again a case
of bona fide closure of business of the H.P. Mineral and Industrial
Corporation where the Employers complied with the provisions of Section
25-FFA of the Central Act, before services of their Workmen were brought
to an end in consequence of closure. The Workman had raised an Industrial
Dispute asking for compliance with the provisions of Section 25-N of the
Central Act, relating to Retrenchment. It was in the context of the said facts
that closure was not held to be Retrenchment within the meaning of Section
2(oo) of the Central Act. To emphasize, H.P. Mineral is not remotely an
authority for the proposition that a bogus or pretentious closure by an
Employer, to do away with his Workmen’s services, would not constitute
Retrenchment.
50. The facts in Mohd. Sarwar (supra) would be best appreciated the way
they have been set out there. In Paragraph 2 of the Mohd. Sarwar (supra),
the facts are succinctly stated thus:
“2. Before the Tribunal, the Workman contended that he was appointed in a
permanent capacity in the year 1969 and, since then, was working continuously
without any break in service and that he was illegally terminated on 8.7.2000
without holding any inquiry and without granting any opportunity of hearing.
The Workman contended that the Unit of the Employers factory had closed
down illegally without complying with the provisions of Section 6-W of the Act.
It was contended that no notice or wages in lieu of notice was paid nor the
provisions of Section 6-N of the Act was complied with. The Workman
contended that no permission was taken by the Employers from the State
Government for closure of its undertaking and, therefore, the provisions of
Sections 25-M, 25-N & 25-O of the Industrial Disputes Act (hereinafter referred
to as the ‘ID Act’) was violated as well as the provisions of Sections 6-N, 6-P &
6-Q & 6-W of the Act. The Workman, accordingly, prayed that he is entitled to
be reinstated with continuity of service and with full Back Wages.”
51. A perusal of the facts involved in Mohd. Sarwar (supra) do not spare
doubt that the Employer’s factory was closed down, in consequence whereof
the Workman had lost his job. The Workman assailed the closure of the
Employer’s undertaking as one done illegally, without complying with the
provisions of Section 6-W of the State Act. It was in that context that the
violation of provisions of Section 6-N of the State Act was also alleged.
Thus Mohd. Sarwar was a case, where there was no pretence of a closure or
a facade. The reference, however, made under Section 4-K of the State Act
was in the following terms:

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94 LABOUR LAW NOTES 2021 (1) LLN

“Whether the Employers were justified in terminating the service of the

Workman w.e.f. 8.7.2000 ? If not, to what relief is the Workman entitled
to?” [quoted from the Mohd. Sarwar (supra)]
The remarks of the Court, therefore, in Mohd. Sarwar to the effect, “that
the Tribunal was justified in holding that since the validity and legality of
the closure of the establishment was not specified as a point of dispute to
be adjudicated in the referring order, the Tribunal was justified in not
adjudicating the same......”, are well in tune with the law considered in the
earlier part of the decision under reference.
52. This Court has doubts that the principle in Triveni Glass Ltd., (supra)
is slightly overstated, where it is held that, “The terms of reference relating
to the termination of the services of the Workmen is therefore wide enough
to cover every kind of termination of services including termination of
services by way of closure and it was therefore open to the Arbitrator to
enter into the question of legality of the closure for answering the reference.”
That doubt need not be considered for the present, as this case involves a
principle of much narrower scope. The principle in Triveni Glass Ltd.,
(supra) applicable on much narrower ground and what has been held
hereinbefore, would indubitably clothe the Labour Court with jurisdiction to
find out, whether it was at all a case of closure or just a sham to get rid of the
Workman. The Labour Court, on the pleadings of parties and the evidence,
has arrived at a reasonable conclusion that there was no closure at all of a
part of the Unit or undertaking of the Employers. The Labour Court has
rightly held that the process Department continues to function, may be with a
changed technology. It has also been held by the Labour Court that in other
Units of the Employers, the change over to the C.T.P. Machines has not led
to dispensation of services of plate makers, like the Workman. The Labour
Court has, therefore, rightly concluded that the closure pleaded by the
Employers is no closure, but a sham to get rid of the Workman. The
Retrenchment has been held to be unlawful and in breach of Section 25-N of
the Central Act. The Retrenchment has been held neither to be lawful or
justified. It must, therefore, be held in answer to Question No.2 that in case
of a reference about the validity of termination of the services of a
Workman, the Labour Court can examine the validity of a closure pleaded
by the Employers and determine, if it is sham and no closure at all.
53. No other point was pressed on behalf of the Employers in criticism of
the impugned Award.
54. In view of the answers to the two questions formulated and recorded
hereinabove, no infirmity can be found with the Award impugned on merits.
55. It has been brought to the notice of this Court that the impugned
Award insofar as it directs reinstatement has become incapable of
implementation, inasmuch as the Workman has attained the age of

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January 2021 Jagran Prakashan Limited v. Presiding Officer, Labour Court 95
(All.) (Jahangir Jamshed Munir, J.)
Superannuation on 23.5.2018, pending this Writ Petition. Apparently, the
Workman cannot be reinstated in service in compliance with the Award on
account of a supervening development, that is, Superannuation of the
Workman. It is apparent from the impugned Award that at the time when the
Workman’s services were dispensed with, he was in receipt of a monthly
Salary of `6,624. This has been revised upwards in accordance with the
recommendations of the Wage Board. A supplementary Affidavit filed by
the Employers dated 15th January, 2017, acknowledges in Paragraph 3 that
the then prevalent Salary of the Workman (contemporaneous with the
Affidavit) would be `16,856. It is presumably the then current Monthly
Salary, though in the Affidavit, the stipulation of the acknowledged
remuneration as a monthly entitlement, is conspicuous by its absence. There
is a detailed calculation furnished by the Workman in Paragraph 11 of his
Affidavit, dated 17th January, 2017, showing his entitlement to arrears,
worked at 50% of his Wages in terms of the award at a figure of
`14,70,137. The calculation takes into account periodic revision of Salary
and the varying entitlement during different periods of time as per prevalent
Wages/Salary.
56. This Court is of opinion that in the totality of circumstances,
particularly, the fact that the Workman has not after all rendered service
during the entire period of time until his superannuation, though not on
account of his fault, ends of justice would be met by modifying the Award
impugned to provide that the Workman shall be entitled to receive in full
satisfaction of all his claims, a lump sum of `6 lakhs from the Employers
within two months of date. In the event, the sum of money directed to be
paid in lump sum by the Employers is not paid to the Workman within the
stipulated period of time, the Workman would be entitled to simple Interest
@ 6% per annum till realization. The Workman shall be entitled to receive in
Costs from the Employers a sum of `20,000.
57. The Writ Petition is partly allowed. Costs shall be payable as
directed.
  

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96 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 96 (Bom.)

IN THE HIGH COURT OF BOMBAY
R.V. Ghuge, J.
W.P. No.7016 of 2016
10.1.2020
Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields Ltd.
.....Petitioner
Vs.
Narayan Karu Dahekar .....Respondent
PAYMENT OF GRATUITY ACT, 1972 (39 of 1972) — Grounds for
Forfeiture — Submission of false Educational Certificate — Whether
amounts to Moral Turpitude — Respondent appointed as Badli Worker
and afterwards appointed as Security Guard — Tendered School
Certificate indicating his qualification as 8th Class pass — Anonymous
Complaint received that he submitted false Certificate — Departmental
Enquiry initiated and dismissed after enquiry — After issue of Show
Cause Notice, Gratuity forfeited for having committed act which
amounts to Moral Turpitude — Respondent approached Controlling
Authority who allowed Application and directed Petitioner to pay
Gratuity with Interest at 10% w.e.f. 2.3.2014 one month after his
dismissal — Appeal of Petitioner dismissed by Appellate Authority —
On challenge, held, Respondent continued in employment for 24 years
and dismissed one day before Superannuation date — There is nothing
on record to indicate that his conduct was detrimental to interest of
organization on account of his education — Whether Respondent was
8th Standard qualified or not, did not affect his duties as Security
Guard — In peculiar facts, Respondent must not gather impression that
he got away with fraudulent act and law was unable to punish him —
Respondent agreeable to waive 50% of Gratuity as commensurate
punishment for misconduct — In view of matter, Petition allowed partly
— Impugned Judgments stand modified accordingly — Respondent at
liberty to withdraw 50% Gratuity with accrued Interest — 50% amount
to be returned to Employer by Controlling Authority — Rule made
partly absolute accordingly. (Paras 19 to 23)
CASES REFERRED
Allahabad Bank v. Dipakkumar Bose, 1997 (1) CLR 834, ......................................................17
Devendra Kumar v. State of Uttaranchal, 2013 (4) LLN 450 (SC) ............................................8
Jaswant Singh Gill v. Bharat Coking Coal Ltd., 2007 (1) SCC 663 ....................................9, 13
Sarvjeet Chhotelal Tiwari alias S.C. Tiwari v. Union of India, through General Manager,
Central Railways, 2015 (1) CLR 24 ..................................................................................11
Shivaji s/o. Kerba Paikrao v. Union of India, 2018 (5) Mh.L.J. 349..................................12, 13

Labour Law Notes / January-2021

January 2021Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields Ltd. v. 97
Narayan Karu Dahekar (Bom.) (R.V. Ghuge, J.)
Shri Laxman Balu Deualkar v. Chief Executive Officer, Kolhapur District Central Coop.
Bank Ltd., 2018 (3) CLR 8..................................................................................................9
State of Jharkhand v. Jitendra kumar Srivastava, 2013 (4) LLN 56 (SC).................................18
Union Bank of India v. C.G. Ajay Babu, 2018 (4) LLN 1 (SC) ...........................................9, 15
S.C. Mehadia, Advocate for Petitioner.
N.B. Meshram, Advocate for Respondents.
Finding — W.P. partly allowed.
JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally by the consent
of the parties.
2. The Petitioner is aggrieved by the Judgment and Order delivered by the
Controlling Authority-Assistant Commissioner, Labour, Chandrapur, dated
21.10.2015/30.10.2015 and the Order passed by the Appellate Authority,
dated 29.4.2016/2.5.2016, by which the Respondent has been granted
Gratuity under the Payment of Gratuity Act, 1972.
3. The Petitioner-Management submits that the Respondent was
appointed as a Badli Worker on 13.3.1982. Subsequently, he had applied for
appointment as a Security Guard and he was appointed in this new capacity
on 7.6.1990. The requisite qualification for appointment as a Security Guard,
was education upto the 8th standard. The Respondent had tendered a School
Certificate, which indicated that he had passed his 8th class.
4. The Petitioner has averred that it received an information from
anonymous sources that the School Certificate produced by the Respondent
was false and bogus. As such, the Petitioner initiated a Departmental
Enquiry against the Respondent and upon conclusion of such an Enquiry, he
was issued with the Second Show Cause Notice proposing dismissal from
service. By Order, dated 30.1.2014, he was dismissed from service.
5. The Petitioner thereafter issued a Notice, dated 1/2.2.2014 calling upon
the Respondent to explain as to why his Gratuity should not be forfeited for
having committed an act which amounts to moral turpitude. After
considering his Reply, dated 8.2.2014, the Petitioner-Management issued a
Communication, dated 28.2.2014 in form ‘M’ and rejected the reply and
directed the forfeiture of the Gratuity.
6. The Respondent approached the Controlling Authority which, at the
relevant time, was the Assistant Commissioner, Labour, Chandrapur, by
tendering form ‘N’ on 13.3.2014. By the impugned Judgment, dated
21.10.2015/30.10.2015, the application was allowed and the Petitioner was
directed to pay an amount of `7,41,371 towards Gratuity along with interest
@ 10% per annum w.e.f. 2.3.2014, which is one month subsequent to the
dismissal of the Respondent from employment.

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98 LABOUR LAW NOTES 2021 (1) LLN

7. The Petitioner has deposited the entire Gratuity amount as directed by

the Controlling Authority, which is a pre-condition, while preferring an
Appeal before the Controlling Authority, which was the Dy. Chief
Commissioner for Labour, Nagpur. By Order, dated 29.4.2016/2.5.2016, the
Appeal came to be dismissed.
8. The learned Counsel for the Petitioner has strenuously canvassed that
the Respondent has not challenged his dismissal from service and as such,
the said dismissal has attained finality. In this backdrop, the Respondent now
cannot claim Gratuity when the said Gratuity has been forfeited by following
the due procedure of law. Reliance is placed upon the Judgment of the
Hon’ble Apex Court in the matter of Devendra Kumar v. State of
Uttaranchal and others, 2013 (4) LLN 450 (SC) : 2013 (9) SCC 363 to
buttress the submission that suppression of information or furnishing false
information while seeking an appointment, amounts to a fraudulent act.
Dismissal from service on account of such conduct need not be interfered
with. It is therefore, contended that as the conduct of the Respondent
amounts to an act of moral turpitude, the forfeiture of Gratuity as ordered by
the Employer ought not to have been interfered with by the Controlling
Authority.
9. Further reliance is placed upon the Judgment delivered by this Court at
the Principal Seat in the matter of Shri Laxman Balu Deualkar v. Chief
Executive Officer, Kolhapur District Central Co. Op. Bank Ltd., 2018 (3)
CLR 8, wherein this Court (Coram: S.C. Gupte-J.) considered the view taken
by the Hon’ble Apex Court in the matter of Jaswant Singh Gill v. Bharat
Coking Coal Ltd., 2007 (1) SCC 663, which is subsequently considered by
the Hon’ble Apex Court in the matter of Union Bank of India and others v.
C.G. Ajay Babu and another, 2018 (4) LLN 1 (SC) : 2019 (1) CWC 330
(SC) : 2018 (9) SCC 529 and it was held in Paragraph Nos.4, 5 & 6 as under:
“4. Section 4 of the Act provides for payment of Gratuity. Gratuity is payable to
an Employee on the Termination of his employment after he has rendered a
continuous service for not less than five years. Clause (a) of Subsection (6) of
Section 4 provides that not-withstanding anything contained in sub-section (1),
the Gratuity of an Employee, whose services have been terminated for any act,
wilful omission or negligence causing any damage or loss to, or destruction of
property belonging to, the Employer, is liable to be forfeited to the extent of the
damage or loss caused. Clause (b) of sub-section (6) provides for forfeiture of
whole or partial Gratuity (i) if the services of the Employee are terminated for
riotous or disorderly conduct or any other act of violence, or (ii) if the services of
the Employee have been terminated for any act which constitutes an offence
involving moral turpitude, provided it is committed by him in the course of his
employment. On its plain terms, Clause (b) refers to termination for any “act
which constitutes an offence involving moral turpitude”. The Clause does not
contemplate actual conviction of the Employee concerned for an offence
involving moral turpitude. Any act, which if proved, would constitute an offence,
would be covered by the first part of the Clause. Anything done contrary to

Labour Law Notes / January-2021

January 2021Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields Ltd. v. 99
Narayan Karu Dahekar (Bom.) (R.V. Ghuge, J.)
justice, honesty, modesty or good morals involves moral turpitude. If the act
constituting an offence is, thus, contrary to justice, honesty, modesty or good
morals, it enables the Employer to forfeit, wholly or partially, the Gratuity
payable to the concerned Employee. There is nothing in the Clause to suggest
that actual conviction for an offence involving moral turpitude is a pre-condition
for forfeiture of Gratuity under it.
5. Sub-section (6) of Section 4, read as a whole, also does not lend itself to any
such construction. Clause (a) of it provides for forfeiture of Gratuity in case of
termination inter alia for “any act, wilful omission or negligence causing any
damage or loss” to the Employer; whereas as Clause (b)(i) provides for forfeiture
in case of termination for “riotous or disorderly conduct or any other act of
violence”. If these acts or omissions or conducts need not be proved in any Court
of law as a condition of forfeiture and can only be a matter of Domestic Inquiry,
there is no basis for claiming that the act referred to in Clause (b)(ii), namely,
“act, which constitutes an offence involving moral turpitude”, must be proved in
a Criminal Court of Competent jurisdiction. The Termination may well be based
on proof of such act in a Domestic Inquiry. Besides, considerations of purposive
interpretation also negate any such construction of Clause (b). As noted by the
Supreme Court in the case of Management of Tournamulla Estate v. Workmen,
1973 (2) SCC 502, the object of a Gratuity scheme is to provide Retirement
benefits to Workmen, who have rendered long and unblemished service to the
Employer and thereby contributed to the prosperity of the Employer and
therefore, it may not be correct to say that no misconduct, however grave, can be
visited with forfeiture of Gratuity or part thereof. Even in a recent case, U.P.
State Sugar Corporation Ltd. v. Kamal Swaroop Tondon, AIR 2008 SC 1235,
the Supreme Court has held that retrial benefits “are not paid to the Employee
gratuitously or merely as a matter of boon”, but they are paid to the Employee
“for his/her dedicated and devoted work”. In cases involving termination of an
Employee for misconduct, the law of Gratuity, i.e. Section 4(6), makes a
distinction between various acts of misconduct. There are acts or wilful
omissions (i) which cause damage or loss to, or destruction of, property
belonging to, the Employer, (ii) which amount to riotous or disorderly contract
or any other act of violence, and (iii) which constitute an offence involving
moral turpitude, each of which are visited with different consequences in the
matter of forfeiture. In case of (i) the forfeiture is to the extent of damage or loss
caused, whilst in case of (ii) and (iii) the forfeiture may be whole (or partial).
These acts, in the first place, lead to termination of the Employee and thereafter
forfeiture of Gratuity in the manner stated by law. If the termination on the
ground of any of these acts is justifiable, the forfeiture may follow. If termination
is justifiable by reason of the act proven in a Domestic Inquiry, there is no reason
why a further proof of any of these acts in a Court of Competent jurisdiction may
be necessary for applying the provisions of forfeiture of Gratuity. No such proof
is insisted upon in case of acts listed in (i) & (ii) above; and there is no
legislative purpose in requiring such proof in case of acts mentioned in (iii)
above”
6. A learned Single Judge of our Court in the case of Bank of India v. R.V.
Deshmukh has considered the contention of the Employee suffering forfeiture of
Gratuity. The learned Judge has held that there is no merit in the contention that
the provisions of Section 4(6)(b)(ii) authorize forfeiture of Gratuity only where

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100 LABOUR LAW NOTES 2021 (1) LLN

an Employee is convicted of an offence involving moral turpitude. “Neither the

express wordings of the sub-section nor does the legislative intent”, held the
learned Judge, “support any such strained construction.”
10. It is further contended that the act committed by the Respondent was
one which was within the domain of the Employer and it was for the
Employer to consider as to how it desired to deal with the said misconduct.
The Petitioner-Employer was not required to approach the Police machinery
or file a First Information Report against the Employee. It was a misconduct
committed under the service conditions of the Employer and since the
Employer was duly empowered by law to follow the mechanism of
conducting a Departmental Enquiry, there was no necessity to approach the
Police machinery in this regard. The Petitioner-Employer dealt with the
misconduct of the Respondent within the service conditions applicable and
by following its discipline rules, it initiated a Departmental Enquiry. The
Respondent tendered a Reply, dated 8.2.2014, and admitted his guilt of
submitting a bogus School Certificate, which indicated that he had only
qualified the 8th class.
11. The Petitioner then relies upon the Judgment delivered by the learned
Division Bench of this Court in the matter of Sarvjeet Chhotelal Tiwari
alias S.C. Tiwari v. Union of India, through General Manager, Central
Railways, Mumbai and others, 2015 (1) CLR 24, wherein it was held in
Paragraph Nos.16 & 17 as under:
“16. We neither have any hesitation nor any doubt in our mind that the
misconduct proved to have been committed by the Petitioner is of a grave and
serious nature. We do not intend to enlarge this Judgment by referring to several
reported Judgments of the Apex Court as well as many High Courts on the point
that misappropriation of whatsoever nature, irrespective of whether it involves
`1, or thousands, is a grave and serious misconduct. It is trite that such a mis-
conduct could never be treated leniently on the ground that such a mis-conduct is
of a minor nature. Quantum of the amount misappropriated is not the Yardstick
to be considered while awarding punishment in cases of misappropriation, theft,
fraud etc.
17. It has been held by the Division Bench of this Court (Coram: Ranjana Desai
& Roshan Dalvi, JJ) in the case of Nilesh R Mandra v. Union of India and
others, 2008 (4) ALL Mr. 789, in Paragraphs No.6, 7 & 8 as under:
“6. Though undoubtedly the overcharging is to a very limited extent, it is only
with regard to that decoy passenger. It is in respect of a case in which the
Petitioner has been watched and caught. It leaves out the numerous instances
when the Petitioner may not have been watched and caught. Each passenger is
a victim. Each passenger has consequently been cheated and defrauded to that
extent. The fact that the Petitioner could overcharge a passenger whilst being
under vigilance and scrutiny showed that the Petitioner took advantage of
either the ignorance or the illiteracy of the victim. It shows a dishonest attitude
of the Government servant. It causes financial loss to the institution he serves.
It results in Criminal breach of trust between the third party contracting with

Labour Law Notes / January-2021

January 2021Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields Ltd. v. 101
Narayan Karu Dahekar (Bom.) (R.V. Ghuge, J.)
the institution as also qua the Petitioner in the service of that institution. It
results in misappropriation of funds as it would cause unlawful loss to the
Third party and unlawful gain to the Petitioner. In a given case, albeit to that
limited extent, misappropriation of each small amount may cause unlawful loss
to that extent to the institution and the corresponding unlawful gain to the
Petitioner by the use of such dishonest means and by mis-conducting himself.
7. It is in this light that it is a settled position in law through various Judgments
of the Apex Court that the quantum of the amount misappropriated, stolen or
defrauded is not the Yardstick to determine the extent of the punishment. No
matter what is the amount the conduct betrays the trust of the institution in its
Worker. The institution, therefore, loses confidence in the Worker. That
institution, therefore, is entitled, upon proof of the misconduct, to remove such
Employee.
8. It is argued on behalf of the Petitioner that it is a small act of a small man
and the punishment is, therefore, disproportionate to his misconduct. We
cannot persuade ourselves not to consider the victim’s point of view. Just as the
Petitioner is a small man and has committed a small misconduct, his victim is
an equally a small man. `25 matters to a passenger taking a second class daily
ticket from Khadavli to Pune. Such victims would be expected to prefer a rate
lesser even to that extent to make that small saving. It is only because of his
illiteracy or the ignorance of the ticket value that he could be cheated, albeit to
that extent. We must, therefore, not turn a nelson’s eye to the victim’s point of
view. In this light, we must refer to the Judgments of the Apex Court cited
before us by the Counsel for the Respondents.”
12. The Petitioner then relies upon the Judgment delivered by the learned
Division Bench of this Court in the matter of Shivaji s/o. Kerba Paikrao v.
Union of India and others, 2018 (5) Mh.L.J. 349, wherein it was held that a
fraud played by an Employee in relation to his employment, amounts to an
act of moral turpitude and he needs to be deprived of the entire Gratuity
amount. The conclusions in Paragraph 6 & 7 read as under:
“6. Aforesaid both rules show that when there is a Termination, on the ground of
moral turpitude and the act amounted to offence, the forfeiture of entire Gratuity
amount is permissible. In view of the aforesaid facts of the present matter, this
Court holds that it is not possible to give direction to the Respondent LIC to
release the Gratuity amount or to quash the forfeiture order of the Gratuity
amount.
7. So far as the second relief like direction to give the arrears in respect of
revision of pay scale which was given effect on 1.8.2002 is concerned, it can be
said that those rules, which were published in Notification, dated 5.8.2005, show
that if the Employee was terminated during period from 1.8.2002 till the date of
Notification then he will not be entitled to get the arrears of salary on account of
revision. Thus, as per the rules and the scheme of the Respondent-Corporation
the second direction is also not possible. He was terminated within the aforesaid
period. In the result, the Petition stands dismissed.”
13. The learned Advocate for the Workman has laid heavy reliance on the
Judgment delivered by the Hon’ble Apex Court in the matter of Jaswant

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102 LABOUR LAW NOTES 2021 (1) LLN

Singh Gill (supra) and Union Bank of India and others (supra) to support
the contention that unless the Employer approaches the Police Authority, an
offence is registered against the Employee and until such an Employee is
convicted by the Court having Criminal jurisdiction, there cannot be a
forfeiture of Gratuity. He submits that the Petitioner was not restrained from
registering a Crime against the Respondent and if such allegations were
proved and if the Employee was convicted, then alone could the Employer
have forfeited the Gratuity.
14. In view of the above, it cannot be ignored that the Employer was
unaware about the alleged fraud played upon it by the Respondent from
1990 onwards till his dismissal from service. The Respondent worked for 24
years on the basis of a forged School Certificate which indicated that he had
acquired the requisite qualification for being eligible to be appointed as a
Security Guard. It was on account of an anonymous Complaint by which the
Petitioner-Employer decided to enquire into the Certificate tendered by the
Respondent. As the Respondent-Workman noticed that disciplinary action
was being initiated against him, he chose to admit his guilt and plead before
the Employer that he had submitted a false Certificate. The normal date of
Superannuation of the Respondent was 31.1.2014. The Petitioner awarded
him the punishment of dismissal from service w.e.f. 30.1.2014, which is one
day prior to the date of Superannuation of the Employee.
15. I find from Union Bank of India and others v. C.G. Ajay Babu and
another case (supra) that there was a settlement between the Appellant-Bank
and the Union, which provided for forfeiture of Gratuity only if a financial
loss was caused to the Bank by an Employee owing to his misconduct. If
such an Employee was dismissed from service for such a proved
misconduct, the Employer was permitted to forfeit the Gratuity of the
Employee. Considering such bipartite settlement, which provided for
forfeiture of Gratuity, that the Hon’ble Apex Court relied upon the Clauses
in the settlement and protected the Employee from the forfeiture of Gratuity,
as a financial loss was not proved.
16. The learned Counsel for the Petitioner has strenuously canvassed that
though the Respondent had worked practically till the last day of his
employment and was dismissed from service one day prior to his date of
Superannuation, the reason for such dismissal cannot be ignored. As an act
of fraud was discovered at the fag end of his service tenure on account of the
Complaint received from an anonymous sender, the Management was
alerted. Had the Management been alerted earlier, the action that the
Management initiated at the fag end of the career of the Employee, would
have been initiated the moment it received the information about the
fraudulent conduct of the Employee.
17. It requires no debate that when an act of misappropriation or a fraud
is committed, such an act if proved, would amount to moral turpitude. In the

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January 2021Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields Ltd. v. 103
Narayan Karu Dahekar (Bom.) (R.V. Ghuge, J.)
case of Allahabad Bank and another v. Dipakkumar Bose, 1997 (1) CLR
834, the Hon’ble Apex Court considered the expression ‘moral turpitude’ in
Paragraph Nos.9 to 12 as under:
“9. What is an offence involving “moral turpitude” must depend upon the facts
of each case. But whatever may be the meaning, which may be given to the term
“moral turpitude” it appears to us that one of the most serious offences involving
“moral turpitude” would be where a person employed in a banking Company
dealing with money of the general public. Commits forgery and wrongfully
withdraws money which he is not entitled to withdraw”.
“10. This Court in Pawan Kumar v. State of Haryana and another, 1996 (4) SCC
17 at page 21 dealt with the question as to what is the meaning of expression
“moral turpitude” and it was observed as follows:
“Moral turpitude” is an expression which is used in legal as also societal
parlance to describe conduct which is inherently base, vile, depraved or having
any connection showing depravity.”
11. This expression has been more elaborately explained in Baleshwar Singh v.
District Magistrate and Collector. Banaras, AIR 1959 All. 71 where it was
observed as follows:
“The expression “moral turpitude’ is not defined anywhere. But it means
anything done contrary to justice, honesty, modesty or good morals. It implies
depravity and weakness of character or disposition of the person charged with
the particular conduct. Every false statement made by a person may not be
moral turpitude, but it would be so if it discloses vileness or depravity in the
doing of any private and social duty which a person owes to his fellowmen or
to the society in general. If therefore the individual charged with a certain
conduct owes a duty, either to another individual or to the society in general, to
act in a specific manner or not to so act and he still acts contrary to it and does
so knowingly, his conduct must be held to be due to vileness and depravity. It
will be contrary to accepted customary rule and duty between man and man.”
“12. In our opinion the aforesaid observations correctly spell out the true
meaning of the expression “moral turpitude”. Applying the aforesaid test, if the
allegations made against the Respondent are proved, it will clearly show that he
had committed an offence involving moral turpitude and, therefore, the
Appellant had the jurisdiction to suspend him under the aforesaid Clause 19.3.
The High Court observed that there was nothing on record to suggest that the
Management had formed an opinion objectively on the consideration of all
relevant material available against the Petitioner that in the circumstances of the
case the Criminal acts attributed to the Petitioner implied depravity and vileness
of character and are such as would involve moral turpitude. It did not regard
entering into a Criminal conspiracy to commit the aforesaid offences as being an
offence involving moral turpitude. We one, to say the least, surprised at the
conclusion, which has been arrived by the Allahabad High Court. There was
material an received before the appellant, in the form of the report of the
C.B.I./S.P.E., which clearly indicated the acts of commission and commissions,
amounting to “moral turpitude’ alleged to have been committed by the
Respondent. Furthermore the Respondent has been charged with various

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104 LABOUR LAW NOTES 2021 (1) LLN

offences allegedly committed while he was working in the bank and punishment
for which could extend upto ten years imprisonment (in case the Respondent is
convicted under Section 467, I.P.C.).”
18. In the case of State of Jharkhand and others v. Jitendra kumar
Srivastava and another, 2013 (4) LLN 56 (SC) : AIR 2013 SCC 3383, it
was held by the Hon’ble Apex Court that if an act committed by an
Employee had caused financial loss to the Management, it would be justified
for the Management to withhold the pensionary benefits of such an
Employee.
19. It requires no debate that there can be no sympathy, which could be
shown towards an Employee, who has committed a mis-conduct in the
nature of misappropriation or a fraudulent act. The only factor that may
require consideration in this case is that the Employee continued in
employment for 24 years and was dismissed from service one day prior to
his date of Superannuation. There has been no Complaint as regards his
performance of duties and there is nothing on record to indicate that his
conduct was detrimental to the interest of the organization. He performed his
duties promptly and the record does not reveal any such misconduct, which
would have been caused on account of his education. As such, whether the
Respondent was 8th standard qualified or not, did not affect his performance
of duties as a Security Guard.
20. While drawing the above stated impression, it must be borne in mind
that the message to the society must go out loud and clear that a fraudulent
act of an Employee cannot be pardoned. Even in the peculiar facts as
recorded above, the Respondent-Workman must not gather the impression
that he has got away with his fraudulent act and the arms of law were unable
to punish him.
21. In this backdrop, I called upon the learned Advocate for the
Respondent to take instruction as to whether the Respondent would agree to
waive 50% of his Gratuity amount as a commensurate punishment for his
misconduct, so as to balance the equities. It is submitted on instructions
gathered by the learned Advocate that the Respondent is agreeable and he
therefore, waives 50% of the Gratuity amount.
22. In view of the above, this Petition is partly allowed. The impugned
Judgments delivered by the Controlling Authority and by the Appellate
Authority, would stand modified and the Respondent-Employee would be at
liberty to withdraw 50% share with accrued interest. Therefore, 50% of the
Gratuity amount with accrued interest would be returned to the Employer by
the Controlling Authority.
23. Rule is made partly absolute in the above terms.
  

Labour Law Notes / January-2021

January 2021 Chanda Deepak Kochhar v. ICICI Bank Ltd. 105
(DB) (Bom.) (N.M. Jamdar, J.)
2021 (1) LLN 105 (DB) (Bom.)
IN THE HIGH COURT OF BOMBAY
N.M. Jamdar & M.S. Karnik, JJ.
W.P.(Lodg.) No.3315 of 2019
5.3.2020
Chanda Deepak Kochhar .....Petitioner
Vs.
ICICI Bank Ltd. and others .....Respondents
CONSTITUTION OF INDIA, Articles 12 & 226 — BANKING
REGULATION ACT, 1949 (10 of 1949), Section 35-B(1)(b) — Whether
Private Banks, a ‘State’ within meaning of Article 12 — Scope of Article
226 — Maintainability of Writ Petition — Previous approval of RBI in
case of Appointment, Reappointment, Termination — Petitioner joined
as Management Trainee with Respondent-Bank — Reached up to level
of MD & CEO — On basis of Complaint, Inquiry initiated against
Petitioner and directed her in June 2018 to go on leave till completion of
Inquiry — Petitioner sought early Retirement which was accepted vide
Letter, dated 4th October 2018 subject to certain conditions —
Petitioner terminated from service and Retirement benefits were
revoked vide Communication, dated 1st February 2019 — Petitioner
challenges action praying that acceptance of early Retirement be
declared valid, set aside Termination Order and refrain Respondent
from recovering benefits granted to her — Held, Scope of Article 226 is
wide and writs & Orders of diverse nature can be issued as power of
Courts not bound by technicalities — A Private Company normally not
amenable to Writ jurisdiction under Article 226 — Even if a body
performing Public duty and amenable to Writ jurisdiction, all its
decisions not subject to Judicial Review — Before issuing Writ,
particularly Writ of Mandamus, Court has to satisfy that action of
Authority, is in domain of Public law as distinguished from Private law
— Relationship between Petitioner and Respondent governed by
Contract of terms of Resolution and Orders passed by Respondent —
When employment in Private entity regulated by Contracts, Courts
would not exercise Writ jurisdiction — Banking Regulation Act
empowers RBI to issue directions to Banks, regulate shareholding and
operations of Banks in interest of Banking policy — Banking
Companies like Respondent-Bank have freedom to conduct their affairs
— Section 35-B(1)(b) enacted with object to ensure that action of a Bank
does not have adverse impact on banking — Proposal for termination of
Employee is examined by RBI from perspective of its impact on general
banking and it has no lis between Employer and Employee — Section

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106 LABOUR LAW NOTES 2021 (1) LLN

35-B(1)(b) not enacted to regulate Service conditions between

Employer and Employee — Petitioner-Bank, not an instrumentality of
State and receives no Pubic funding — Dispute raised by Petitioner
arose from Contractual relationship — Section 35-B(1)(b) does not
regulate Service conditions and approval for Termination under it
does not adjudicate rights of Petitioner as Employee — For
Contractual remedies, Petitioner at liberty to approach appropriate
forum and not Writ jurisdiction — Writ Petition dismissed as not
maintainable. (Paras 11, 12 & 15 to 24)
CASES REFERRED
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani, 1989 (2) LLN 281 (SC)...................................................................21
Binny Ltd. v. V. Sadasivan, 2005 (3) LLN 1063 (SC) .............................................................11
Federal Bank Ltd. v. Sagar Thomas, 2003 (4) LLN 469 (SC) ............................................11, 19
Firozali Abdul Karim Jivani v. Union of India, 1992 (1) Mh.L.J.1 .........................................21
K.K. Saxena v. International Commission on Irrigation & Drainage, 2015 (4) SCC 670........11
Marwari Balika Vidyalaya v. Asha Srivastava, MANU/SC/0365/2019 ...................................21
Raj Soni v. Air Officer Incharge Admn., 1990 (3) SCC 261 ...................................................21
Ramakrishna Mission v. Kago Kunya, MANU/SC/0413/2019 ..........................................11, 22
Ruchi Soya Industries Ltd. v. IDFC Bank Ltd., MANU/MH/0146/2017 .................................13
Vikram Nankani, Senior Advocate, Karan K. Vyas, S.K. Saxena & Mitul Shah i/b Sajal
Yadav, Advocates for Petitioner.
Darius Khambata, Senior Advocate, Mustafa Doctor, Senior Advocate, Aditya Mehta,
Abhijit Joshi, Silpa Nair, Prachi Bhanani, Vyoma Mehta i/b Veritas Legal, Advocates,
Venkatesh Dhond, Senior Advocate, Prasad Shenoy and Aditi Phatak i/b. Udwadia &
Co., Advocates for Respondents.
Finding — W.P. dismissed.
JUDGMENT
N.M. Jamdar, J.
1. The Petitioner was working as a Managing Director with the ICICI
Bank. The Petitioner was terminated from service. The Reserve Bank India
communicated its approval to the termination. The Petitioner has challenged
the Termination Order and has prayed for consequential reliefs. The
Petitioner has also challenged the communication issued by the Reserve
Bank.
2. The Petitioner joined the ICICI Bank on 17 April 1984 as a
Management Trainee. The Petitioner was appointed as Executive Director of
the ICICI with effect from 1 April 2001 to 3 March 2006. The Petitioner was
reappointed as Executive Director from 1 April 2006 to 31 March 2009. In
April 2006 the Petitioner was promoted as a Deputy Managing Director. The
Petitioner was then promoted as Joint Managing Director in October 2007.
The Petitioner was appointed as Joint Managing Director and Chief
Financial Officer from 1 April 2009 to 30 April 2009. After that, as a
Managing Director and Chief Executive Officer from 1 May 2009 to 31

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January 2021 Chanda Deepak Kochhar v. ICICI Bank Ltd. 107
(DB) (Bom.) (N.M. Jamdar, J.)
March 2014. The Petitioner was re-appointed as a Managing Director and
Chief Executive Officer for five years from 1 April 2014 to 31 March 2019.
Approval for these appointments were communicated by Reserve Bank. We
refer to the Petitioner as Managing Director.
3. According to the ICICI, Complaints were received against the
Petitioner. ICICI, in its meeting held on 29 May 2018, constituted an
Enquiry by a retired Judge of the Supreme Court of India. In June 2018 the
Petitioner informed ICICI that Petitioner would go on leave till the Enquiry
is completed. By Letter, dated 3 October 2018, the Petitioner sought an early
retirement. ICICI, by the Communication, dated 4 October 2018 accepted
the request for early Retirement subject to certain conditions. On 27 January
2019 the report of the Enquiry was submitted. The report was adverse to the
Petitioner. In the meeting held on 30 January 2019, the Board of the ICICI
treated the separation of the Petitioner’s service as a Termination for Cause.
A communication to that effect was issued to the Petitioner. By further
communication dated 1 February 2019, ICICI revoked the Retirement
benefits of the Petitioner. Correspondence ensued between the parties. The
Petitioner called upon the ICICI to restore to the Petitioner the existing and
future entitlements, including unpaid amounts, stock options, medical
benefits. ICICI refused the request.
4. The Petitioner thereafter filed the present Petition on 20 November
2019 praying for a declaration that the communication accepting the request
of the Petitioner for early Retirement, is valid. Petitioner challenged the
Order of Termination. Petitioner sought to refrain ICICI from recovering
and/or cancelling the benefits granted to the Petitioner for early retirement.
Petitioner sought a declaration to exercise the benefits of stock options.
5. The Petition came up on board on 28, November 2019 when it was
adjourned to 2 December 2019. On 30 November 2019, ICICI filed a reply,
and raised a challenge to the maintainability of the Writ Petition. In this
reply, ICICI annexed a Communication, dated 5 February 2019 addressed to
Reserve Bank regarding the Termination of the Petitioner’s services. So also
the communication of the Reserve Bank, dated 13 March 2019 referring to
Section 35-B(1)(b) of Banking Regulation Act, 1949. When the Petition
came up on board on 2 December 2019, the Petitioner sought leave to amend
the Petition and challenged the communication of the Reserve Bank dated 13
March 2019. The amendment was allowed by the Division Bench. The
objections of the Respondents, including that of the maintainability of the
Petition were kept open. By amendment, the Petitioner challenged the
approval dated 13 March 2019 of the Reserve Bank. On 9 December 2019,
the Division Bench issued notice to the Reserve Bank of India. On 18
December 2019, the Division Bench adjourned the Petition for filing of
further replies. Thereafter, the matter is placed before us.

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108 LABOUR LAW NOTES 2021 (1) LLN

6. At the outset, the Respondents have raised a serious objection to the

maintainability of the Petition. They contend that this objection be decided
first. Accepting this request we have heard the parties on the preliminary
issue of maintainability. Mr. Vikram Nankani, Senior Advocate for the
Petitioner addressed us for the Petitioner; Mr. Darius Khambata and Mr.
Mustafa Doctor, Senior Advocates for ICICI; and Mr. Venkatesh Dhond,
Senior Advocate for the Reserve Bank of India.
7. The Preliminary Objection of ICICI is as follows. ICICI is not an
authority under Article 12 of the Constitution of India. It performs no public
duty. There is no public law element in its functioning. It is only a Private
Bank having a purely private character. There are no pleadings in the Petition
whatsoever that there is any public duty performed by ICICI nor there are any
pleadings of it being an authority under Article 12. The services of the
Petitioner are not governed by any Statute, but it is a purely contractual
relationship with ICICI. The challenge to the Order of Reserve Bank is not
bona fide, and it is only to create a case for maintainability for an otherwise
contractual dispute. The legal implications of the Order passed by the Reserve
Bank will at the most be a ground in the challenge to the action of ICICI in the
appropriate forum, and it is not a cause of action for the Petitioner. The dispute
raised by the Petitioner being purely of private nature would not be subject to
Writ jurisdiction, and the Petition be dismissed as not maintainable.
8. The Petitioner counters the Preliminary Objection as follows. The Writ
Petition is maintainable. The amendment to challenge the order of Reserve
Bank is allowed, and order allowing amendment is not challenged. The
services of the Petitioner are governed by a Statute, more particularly
Section 35-B(1)(b) of the Banking Regulation Act. The Reserve Bank
granting approval for Termination directly affects the rights of the Petitioner,
and therefore such order is justiciable in Writ jurisdiction. The impugned
Order of Reserve Bank shows that the approval is granted ex post facto when
Section 35-B(1)(b) postulates prior permission. The Reserve Bank will have
to justify its actions, and therefore, the Writ Petition is maintainable. ICICI is
a private Bank, and no claim is made to treat it as an authority under Article
12 of Constitution of India; however, that does not mean that the Writ
jurisdiction cannot be invoked against ICICI. The scope of Article 226 is
wide and it’s exercise would depend on facts and circumstances. No decision
of any Court on Section 35-B(1)(b) is shown by the Respondents. Since the
Petitioners services are regulated by the Statute, it casts the Statutory Duty
on the ICICI, which can be enforced by the issuance of a Writ of Mandamus.
As for the Reserve Bank of India, it cannot be disputed that the Writ is
maintainable to challenge the action. The Preliminary Objection to the
maintainability be overruled and the Petition be heard on merits.
9. The Reserve Bank joined the ICICI in raising the issue of
maintainability as follows. While approving termination of a Managing
Director, the Reserve Bank of India does not enter into Employer-Employee

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January 2021 Chanda Deepak Kochhar v. ICICI Bank Ltd. 109
(DB) (Bom.) (N.M. Jamdar, J.)
dispute. Section 35-B(1)(b) of the Act is a regulatory provision only to
oversee that the action of the Bank does not have an adverse impact on the
depositors or the banking system. Scrutinizing the rights of the managing
director as against the Employer is not a matter of focus.
10. At the outset we will deal with the argument of the Petitioner that
since the amendment challenging the Order of Reserve Bank was allowed,
therefore Petition has to be heard on merits. This contention has no
substance. The argument of Respondents on maintainability of the Petition
was always kept open.
11. The ambit of Writ jurisdiction in respect of the private bodies has
come up for consideration of the Courts in several cases. The leading
decisions in respect of Employees of private bodies are (i) K.K. Saxena v.
International Commission on Irrigation & Drainage, 2015 (4) SCC 670
(ii) Federal Bank Ltd. v. Sagar Thomas and others, 2003 (4) LLN 469 (SC)
: 2003 (4) CTC 418 (SC) : 2003 (10) SCC 733 (iii) Ramakrishna Mission
and another v. Kago Kunya and others, MANU/SC/0413/2019; (iv) Binny
Ltd. and another v. V. Sadasivan and others, 2005 (3) LLN 1063 (SC) :
2005 (5) CTC 117 (SC) : 2005 (6) SCC 657. The summary of the law laid
down in these decisions is as under.
12. The scope of Article 226 of the Constitution of India is wide. Writs
and orders of diverse nature can be issued. The exercise of this power is not
bound in technicalities. However same width is not to be implied as to whom
the Writs and directions can be issued under Article 226. Writs can be issued
to the State; an authority; a statutory body; an instrumentality or agency of
the State; a Company financed and owned by the State; a private body run
substantially on State funding; a private body discharging public duty or
positive obligation of public nature; and a person or a body under liability to
discharge any function under any statute, to compel it to perform such a
statutory function. A Private Company would normally not be amenable to
the Writ jurisdiction under Article 226 of the Constitution. However, there
are legislations like the Labour legislation or environmental legislation
which mandate certain duties. A writ may lie for compliance such duties, for
example, under the Industrial Disputes Act. A Writ would not lie to enforce
purely private law rights. Even if a body is performing a public duty and is
amenable to Writ jurisdiction, all its decisions would not be subject to
Judicial Review. Contractual duties are enforceable as matters of private law
by ordinary contractual remedies such as damages, Injunction, specific
performance and declaration. Before issuing any Writ, particularly Writ of
Mandamus, the Court has to satisfy that action of such authority, is in the
domain of public law as distinguished from private law. For a function to be
of a public character, the function must be closely related to functions
performed by the State in its sovereign capacity. A Writ of Mandamus or the
remedy under Article 226 is a public law remedy and is not generally
available as a remedy against private wrongs. Mandamus is limited to

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110 LABOUR LAW NOTES 2021 (1) LLN

enforcement of public duty. If the private body is discharging a public

function and the denial of any right is in connection with the public duty
imposed on such body, the public law remedy can be enforced. The duty cast
on the public body may be statutory or otherwise, and the source of such
power is immaterial, but there must be the public law element in such action.
13. ICICI is a private Bank. It is administered by its Board of Directors.
ICICI is not established under any statutory instrument. ICICI receives no
funds from the Government. Division Bench of this Court in the case of
Ruchi Soya Industries Ltd., and others v. IDFC Bank Ltd., and others,
MANU/MH/0146/2017, in case of another private Bank, Standard Chartered
Bank, has held that it is not amenable to Writ jurisdiction. ICICI is not an
Authority under Article 12 of the Constitution of India.
14. The Petitioner also accepts that ICICI is not an authority under Article
12, but contends that a Writ is maintainable because ICICI discharges a
public duty or positive obligation of public nature in respect of its
employment of the managing directors. The Petitioner contends to compel it
to perform such a statutory function a Writ can be issued. This argument is
based on the Banking Regulation Act and more particularly Section 35-
B(1)(b) thereof. The Petitioner seeks to import an element of public duty and
Statutory Duty in its Employer-Employee relationship through this provision
and consequently prays to issue of a Writ to both, ICICI and Reserve Bank.
Based on Section 35-B(1)(b), the Petitioner contends that the Statute governs
the relationship between the Petitioner and the ICICI and the Order passed
under Section 35-B(1) (b) affects the Petitioner and therefore open to
challenge by the Petitioner. ICICI Bank and Reserve Bank contend that
Section 35-B(1)(b) has nothing to do with the Employer-Employee
relationship and operates in a different context and merely because the order
under this provision is questioned it will not change the character of the
present dispute from being a purely private dispute.
15. ICICI has its Code of Business Conduct and Ethics. This Code of
ethics governs its Employees, Officers and directors. The Code deals with
issues such as conflicts of interest, personal investments, workplace
responsibilities, duties of directors, Disciplinary procedures. The
appointment of the Petitioner from time to time is with the Resolutions of the
Board of ICICI. Under the Resolution appointments have been made
wherein salaries, per-requisites, bonus have been fixed. The Employer of the
Petitioner is the ICICI and the relationship between the Petitioner and the
ICICI Bank is governed by the contract of terms of the Resolution and
Orders passed by the ICICI. The services of the Petitioner are in terms of
matter of contract of service with ICICI. In respect of the appointments,
communications have been issued by the Reserve Bank under Section 35-
B(1)(b) of the Banking Regulation Act. The question is of the implications
of the Section 35-B(1)(b) of the Act.
16. The Section 35-B(1)(b) reads thus:

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January 2021 Chanda Deepak Kochhar v. ICICI Bank Ltd. 111
(DB) (Bom.) (N.M. Jamdar, J.)
“Section 35-B. Amendments of provisions relating to appointments of managing
directors, etc., to be subject to the previous approval of the Reserve Bank.—
(1) In the case of a Banking Company—
... ... ..
(b) no appointment or re-appointment or termination of appointment of a
chairman, a managing or whole-time director, Manager or Chief Executive
Officer by whatever name called, shall have effect unless such appointment,
re-appointment or termination of appointment is made with the previous
approval of the Reserve Bank.]”
Section 35-B(1)(b) extracted above shows that the appointment,
reappointment and Termination of Chairman, Managing Director, will not
have effect unless it is with the previous approval of the Reserve Bank. In
the further discussion we refer to chairman, managing or whole-time
director, manager or chief executive Officer as: Employees.
17. The question therefore is whether the Section 35-B(1)(b) of the Act
can be said to govern the service conditions of the Petitioner so as to impose
a Statutory Duty on the ICICI Bank and whether the Petitioner can challenge
exercise under Writ jurisdiction.
18. When employments in a private entity is regulated by contracts, the
Courts do not to exercise the writ jurisdiction. Courts exercise Writ
jurisdiction when a public law element involved, if the services are governed
by a Statute. For that purpose the nature of the concerned enactment and its
purpose and scope has to be ascertained.
19. The Banking Regulation Act is enacted to supervise and regulate
commercial banking. The Act empowers the Reserve Bank to issue
directions to the Banks, regulate the shareholding and the operations of
Banks in the interest of banking policy. Part II of the Act deals with banking
Companies. The Reserve Bank, constituted under the Reserve Bank of India
Act, is a Central Bank exercising supervisory and regulatory powers. The
Reserve Bank, exercises power under the Act to grant approvals. It issues
directions to the Banks under the Act in furtherance of economic and
banking policy. It is invested with various powers in the interest of
depositors, efficient use of deposits and banking resources. The predominant
object of conferment of power on the Reserve Bank is the interest of banking
policy. Banking Companies such as ICICI have the freedom to conduct their
affairs; however, Reserve Bank ensures that their activities will not affect the
economy in general. The supervision by the Reserve Bank is in the realm of
larger policy, Federal Bank Ltd. v. Sagar Thomas and others, 2003 (4)
LLN 469 (SC) : 2003 (4) CTC 418 (SC) : 2003 (10) SCC 733.
20. Section 35-B(1)(b) is also enacted with the same object, that is to
ensure that the actions of a Bank does not have an adverse impact on the

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112 LABOUR LAW NOTES 2021 (1) LLN

banking. Various situations may arise under Section 35-B(1)(b) of the Act.
For instance, an order returning the proposal of the Employer as not being in
the interest of the banking system. In this Petition, in the context of public
law element we are only concerned with fact situation of approval for
Termination and therefore our discussion on this provision is in this context.
When a proposal for Termination of Employee is received from the
Employer Bank, the Reserve Bank looks at it from the perspective of its
impact on general banking. Proposal is not scrutinized in the context of a
service contract. The Reserve Bank does not uphold or, adjudicate or decide
the rights of the parties inter se, but only focuses on the consequences of the
proposed action. The grant of approval by Reserve Bank does not mean that
the action of Termination is valid in terms of the service dispute. The
approval is based on the opinion that no impact on the banking system is
discernible. When the Reserve Bank grants approval to the termination, it
has no lis between the Employer and employee before it to determine. If that
would be so, the Employees may demand pre-decisional hearing and copy of
the decision. They may demand a reasoned order as to how the Termination
is approved. The order could be challenged and stay would be asked on the
ground that the Termination is likely to effected. Reserve Bank will be
forced to justify its approval in the context of the service contract. For this
purpose, Reserve Bank would be obliged to enter into the factual disputes,
examine and construe the contract terms, and comment on the rights and
obligations of the Employer and Employee, their breach and justifications.
All this is not clearly not contemplated under by the legislature. Section 35-
B(1)(b) enacted to examine the situation post termination, that is, its impact
on the larger banking interest. The focus of scrutiny under this provision is
not the rights of the Employee. Section 35-B(1)(b) is not a provision enacted
to regulate the service conditions between the Employer and Employee.
21. The Petitioner has relied upon certain decisions of the Supreme Court
in support. The decision of Supreme Court in Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and
others v. V.R. Rudani and others, 1989 (2) LLN 281 (SC) : 1989 (2) SCC
691, arose from case of a teacher. Andi Mukta Sadguru Trust was running a
Science College. Teacher working in the College was terminated from service.
The College was an institution affiliated to the University under certain
obligations. The relationship of the institution with its Employees regarding
service conditions was governed by rules and regulations of the University. In
this contest the Apex Court held that since the Employer-Employee
relationship was governed by statutory provision, there is a public law element
regarding the same. In the decision of Raj Soni v. Air Officer Incharge
Admn., and others, 1990 (3) SCC 261, the school where the Petitioner, a
teacher had worked, though did not receive any aid, the teacher was governed
by Delhi Education Code and the Employer-Employee relationship was thus
governed by statutory provisions. In the case of Marwari Balika Vidyalaya v.

Labour Law Notes / January-2021

January 2021 Chanda Deepak Kochhar v. ICICI Bank Ltd. 113
(DB) (Bom.) (N.M. Jamdar, J.)
Asha Srivastava and others, MANU/SC/0365/2019 the Employer, a Private
School, was receiving a Grant-in-Aid. Because of the grant, approval was
required for termination, and in this backdrop the Supreme Court had held that
the Writ was maintainable against such a school receiving a Grant-in-Aid. The
case of Firozali Abdul Karim Jivani v. Union of India and others, 1992 (1)
Mh.L.J. 1 – W.P. No.1538/89, dated 15.16.10.1991 (Bom.), was decided by
this Court. Here the Petitioner had challenged the acceptance of the
nomination of a Candidate for the post of president of a Multi State Co-
operative Bank. The action of the returning Officer conducting the elections
was questioned. The election was regulated by the Multi-State Co-Operative
Societies Act. These decisions are rendered where a public duty or public law
element existed and where terms of a statute governed the Employer-
Employee relationship, and thus they not applicable to the present case.
22. Several situations may have an indirect effect on the Employer-
Employee relationship. Unless a Statute is enacted with a specific purpose of
regulating the service conditions, it cannot be considered to be as one. A
private organization is subject to various statutory enactments, but that
cannot make its every activity amenable to the Writ Jurisdiction. Private
contracts would not be subject to Writ jurisdiction merely only because of
the fact that they are structured by statutory provisions, Ramakrishna
Mission and another v. Kago Kunya and others, MANU/SC/0413/2019.
23. ICICI is a private body. It is not an instrumentality of the State. It
receives no public funding. Service conditions of the Petitioner are not
governed by any Statute. The dispute raised in this Petition arises from a
contract of personal service. The Termination of the Petitioner is in the realm
of contractual relationship. Since Section 35-B(1)(b) does not regulate
service conditions, approval for termination under it does not adjudicate the
rights of the Petitioner as an Employee. Though Section 35-B(1)(b)
postulates that the termination would not come into effect if there is no prior
approval of the Reserve Bank, the cause of action for the Petitioner is the
Termination by ICICI. For the Petitioner, the legal implications of the grant
of approval, non-grant of approval or post facto approval, as the case may
be, would be grounds and arguments in the contractual dispute. Thus merely
because the approval under Section 35-B(1)(b) is questioned, that cannot
infuse a public law element in this dispute, which remains a contractual
dispute. For the contractual remedies, the Petitioner will have to approach
the appropriate forum and not Writ jurisdiction.
24. As a result, we uphold the Preliminary Objection raised by the
Respondents. The Writ Petition is dismissed as not maintainable.

  

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114 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 114 (Del.)

IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
W.P.(C) No.3269 of 2018, C.M.Appls. No.10178 of 2019, 17218 of 2020, W.P.(C) 3286 of
2018, C.M.Appls. No.10313 of 2019, 16861 of 2020, W.P.(C) No.3293 of 2018, C.M.Appls. No.10312 of
2019, 16862 of 2020, W.P.(C) No.3295 of 2018, C.M.Appls. No.10179 of 2019, 16864 of 2020, W.P.(C)
No.3296 of 2018, C.M.Appl. No.12923 of 2018, W.P.(C) No.3304 of 2018, C.M.Appls. No.48637 of
2018, 10311 of 2019 & 17219 of 2020

4.12.2020
Union Bank of India .....Petitioner
Vs.
Mujahid Qasim and others .....Respondents
LABOUR LAW — Drivers of Bank’s Executives — Whether Workmen
— Employer-Employee relationship — Respondents-Drivers are serving
Executives in erstwhile Corporation Bank, merged with Union Bank of
India — Terminated from service on demanding regularization — On
raising Industrial Dispute, Tribunal holding demand for regularization
as legal, held Termination contrary to law and directed reinstatement —
On challenge, held, several factors to be considered for determining
Employer-Employee relationship including who is Appointing
Authority, who is Pay Master, extent of control and supervision, nature
of job, who can take Disciplinary action, etc. — Facts of instant case
similar to that of Bank of Baroda v. Ghemarbhai H Rabari, 2005 (2) LLN
671 (SC), where Employees produced evidence in form of Vouchers to
show that they worked as Car Drivers for Bank — Supreme Court
upheld Award of CGIT reinstating Workmen — Applying principle and
perusing documents on record, there is no doubt about existence of
Employer-Employee relationship between Bank and Drivers — Records
reveal that Drivers also served Bank in various other roles including
picking up parcels, computers, running errands, claiming
reimbursement and sundry jobs — Log Book also maintained to
supervise their day-to-day activities — These facts show that functions
performed by Drivers was integral part of everyday working of Bank —
Hence, Court has no doubt that Drivers were Employees of Bank —
Counsel for Bank also submitted that Bank was willing to regularize
them subject to fulfilment of eligibility criteria — Drivers, who were
similarly placed have been regularized — Considering long duration of
service and that they are Employees of Bank, their services deserve to be
regularized in terms of Judgment of Supreme Court in ONGC v.
Krishan Gopal, 2020 (2) LLN 17 (SC) — Impugned Order does not
warrant any interference — Reinstatement of Employees upheld —

Labour Law Notes / January-2021

January 2021 Union Bank of India v. Mujahid Qasim 115
(Del.) (Prathiba M. Singh, J.)
Bank directed to regularize services of 11 Drivers — All Writ Petitions
with pending Applications dismissed accordingly. (Paras 48 to 60)
CASES REFERRED
A. Uma Rani v. Registrar, Cooperative Societies, AIR 2004 SC 4504 ....................................15
Balwant Rai Saluja v. Air India Ltd., 2014 (3) LLN 568 (SC) ...........................................11, 44
Bank of Baroda v. Ghemarbhai Harjibhai Rabari, 2005 (2) LLN 671 (SC) .................22, 47, 49
Hussain Bhai v. Alath Factory Employees Union, AIR 1978 SC 1410 ..............................21, 22
Hussainbhai, Calicut v. Alath Factory Thezhilali Union, Kozhikode, 1978 (2) LLN 276
(SC) ...................................................................................................................................45
India Literacy Board v. Veena Chaturvedi, 2005 (10) SCC 79
Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.,
2007 (1) LLN 37 (SC)........................................................................................................14
Mudra Communications v. Ganesh Kumar, W.P.(C) No.4913 of 1997, dated 21st April
2010 ..................................................................................................................................47
ONGC v. Krishan Gopal, 2020 (2) LLN 17 (SC) ............................................. 23, 24, 29, 55, 57
ONGC v. Petroleum Coal Labour Union, 2015 (6) SCC 494 ..................................................29
Post-Master General, Kolkata v. Tutu Das (Dutta), 2007 (4) LLN 66 (SC) .............................15
Ram Singh v. Union Territory, Chandigarh, 2004 (1) SCC 126 ........................................11, 43
State of Haryana v. Piara Singh, 1992 (2) LLN 1037 (SC) ......................................................23
Sushilaben Indravadan Gandhi v. New India Assurance Company Ltd., 2020 (2) LLN 268
(SC) .............................................................................................................................11, 46
U.P. Power Corporation Ltd. v. Bijli Mazdoor Sangh, 2007 (5) SCC 755...............................15
Workmen of Bhurkunda Colliery of Central Coalfields Ltd. v. Management of Bhurkunda
Colliery of Central Coalfields Ltd., 2006 (3) SCC 297 .....................................................23
Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu, 2004 (2) LLN 68
(SC) ...................................................................................................................................42
Workmen of Nilgiri Cooperative Market Society Ltd. v. State of Tamil Nadu, 2004 (2)
LLN 68 (SC) ......................................................................................................................11
Punjab National Bank v. Ghulam Datsagir, 1978 (1) LLJ 312 (SC) ........................................47
Rajat Arora, Advocate for Petitioner.
Ayushi Jain, Advocate for Respondents.
Finding — W.Ps. dismissed.
JUDGMENT
1. The Judgment is pronounced through Video-Conferencing.
2. All these Petitions raise a common question - whether Drivers, who
were serving various Executives in the erstwhile Corporation Bank, which is
now merged with the Union Bank of India (hereinafter, ‘Petitioner/Bank’),
are Employees of the Bank. And if so, whether they are entitled to
regularization. The Petitioner has filed these Petitions challenging two sets
of orders.
3. In W.P.(C) 3296/2018, the challenge is to the Industrial Award, dated
29th November 2017 passed by Central Government Industrial Tribunal
(“CGIT”) in ID No.1/2014, wherein it was held that all the
Drivers/Claimants are ‘Workmen’ and that there is an Employer-Employee

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116 LABOUR LAW NOTES 2021 (1) LLN

relationship between the Bank and them. Accordingly, the Tribunal held that
the demand of the Drivers for regularization of their service was both legal
and valid and had directed regularization of all these Drivers.
4. A second set of awards were passed on the same date i.e. 29th
November 2017 in Complaints filed by the Drivers, wherein the Tribunal
held that the termination of Drivers from employment, is contrary to law and
therefore, they were directed to be reinstated in service. The challenge in the
other Writ Petitions is to the various Awards passed directing regularization
of the Respondent-Drivers.
Submissions:
5. Mr. Rajat Arora, learned. Counsel appearing for the Bank firstly takes
this Court to the terms of reference as set out in the impugned Award in ID
No.1/2014. He submits that the terms of reference are as under:
“Whether the demand of the Delhi General Workers’ Union, D-195,
Karampura, Shivaji Marg, New Delhi-15, against the Chairman-cum-
Managing Director, Corporation Bank, H.O. Mangla Devi Temple Road,
F.B. No.38, Manglore-575001 (Karnataka)/General Manager,
Corporation Bank, Z.O. 16/10, Main Arya Samaj Road, Karol Bagh, New
Delhi-15 for regularization of personal car Drivers in the list enclosed at
Annexure 1 is just valid and legal ? if so, to what benefits the Workmen
are entitled to and what directions are necessary in the matter ?”
6. Learned Counsel submits that in Paragraph 12 of the Award, the
Tribunal has rightly crystallized the issue as ‘whether there is relationship of
Employer and Employee between the Management and Claimants’.
However, according to him, having done so, the Tribunal thereafter steers in
a wrong path by determining whether the Drivers are ‘Workmen’ and
thereafter based on this finding, comes to a conclusion that that there is an
Employer-Employee relationship between them and the Bank. Mr. Arora
points out that out of a total of 19 Drivers, who were part of the reference in
ID No.1/2014, the question before the Tribunal was only in respect of 10 of
the Drivers and crucially only 4 Drivers, who had filed the Complaints
challenging their termination. This is because out of the 19 Drivers, 3 were
already regularized and thus, the Tribunal, clearly, notes that the issues were
to be decided in respect of only 10 drivers (Para 24).
7. Learned Counsel submits that the manner in which the Tribunal
considers whether the Drivers were ‘Workmen’ or not, is in effect framing of
a wrong question, which led to a wrong answer. He further submits that
though the Employee may be a ‘Workman’ under the Act, it cannot be
presumed that an Employer-Employee relationship exists between said
‘Workman’ and the Management in question. The conclusion that they are
‘Workmen’ and hence there is an Employer-Employee relationship between

Labour Law Notes / January-2021

January 2021 Union Bank of India v. Mujahid Qasim 117
(Del.) (Prathiba M. Singh, J.)
the parties is an incorrect conclusion.learned Counsel submits that the cars,
which were being driven by the Drivers, were cars belonging to the Bank,
which were given to Senior Executives of the Bank. However, salaries were
never paid to the Drivers directly by the Bank - the same were paid by the
Executives, under whom the Drivers were working, and the Bank was
merely “reimbursing” the same to the said Executives. This is clear from the
vouchers issued by the Bank which clearly mention that it is ‘reimbursement
of salary’
8. Mr. Arora submits that the Tribunal after noting the definition of
‘Workman’ under Section 2(s) of the Industrial Disputes Act 1947, framed
the wrong question of law and, thus, the award is faulty. The awards
challenged in W.Ps(C). No.3269/2018, 3286/2018, 3295/2018, 3293/2018 &
3304/2018 though passed on the same date, primarily rely on the main award
in ID No.1/2014 that the termination of the Drivers has been held to be
illegal and Back Wages have been directed to be paid by the Bank.
9. Learned Counsel submits that the fact that the Drivers were not the
regular Employees of the Bank, is clear from various circumstances namely:
(i) No provident fund was deposited
(ii) No gratuity payment was made
(iii) Drivers do not have any Pension
(iv) No appointment or Termination Letter was given
(v) No conditions of service were specified at the time of appointment
(vi) The Bank did not have any Disciplinary control over the Drivers.
(vii) Even at the stage of recruitment, no advertisement was given by the
Bank and no test was conducted and it was purely up to the Executives to
whom they wish to engage as Drivers - the Executives were merely
entitled to a Car and reimbursement of salary of Drivers.
10. Thus, the Tribunal has clearly erred, in holding that the Drivers are
Employees of the Bank while giving direction for regularization as also in
setting aside the termination of the Respondent-Drivers.
11. Mr. Arora, has cited two sets of Judgments dealing with - firstly, the
test to determine the relationship between Employer and Employee and
secondly, as to under what circumstances the regularization of Employees
can be done. He relies upon the Judgment of Workmen of Nilgiri
Cooperative Market Society Ltd. v. State of Tamil Nadu & ors., 2004 (2)
LLN 68 (SC) : AIR 2004 SC 1639, to argue that there is no hard and fast
rule to determine as to whether there is an Employer-Employee relationship
between the parties and the same would be adjudicated in each case. Mr.
Arora submits that the various factors that have been set out in Paragraph 38

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118 LABOUR LAW NOTES 2021 (1) LLN

of the Judgment are merely illustrative. Further, reliance is also placed by

learned Counsel on Ram Singh and ors. v. Union Territory, Chandigarh &
ors., 2004 (1) SCC 126; Balwant Rai Saluja v. Air India Ltd., 2014 (3) LLN
568 (SC) : AIR 2015 SC 375, and the recent Judgment in Sushilaben
Indravadan Gandhi & anr. v. New India Assurance Company Ltd. & ors.,
2020 (2) LLN 268 (SC), C.A. No.2235 of 2020, Decided on 15th April
2020]. The submission of Mr. Arora on the basis of these three Judgments is
that ‘control’ is not the sole test to determine the existence of an Employer-
Employee relationship. He submits that the Court ought to adopt a pragmatic
approach and various factors would have to be considered - for example as
stated in Balwant Rai Saluja (supra), whether the Employee was in effect
under the direct control of the Employer, after lifting of the corporate veil.
learned Counsel submits that the question as to whether there is a Contract
for service or Contract of service would have to be determined, depending
upon the nature of service. He submits that if the service, that is provided by
the Employees, is integral to the business of the Employer, then it would be
considered a contract of service and if the service is not integral to business,
and is only an accessory, then it would be a Contract for service. According
to the Supreme Court’s Judgment in Sushilaben Indravadan Gandhi
(supra), the economic reality of the relationship has to be considered, while
determining the nature of employment.
12. While connecting these Judgments to the facts, Mr. Arora submits
that the Petitioner being a Bank, the primary function of the Petitioner is to
deal with the acceptance of deposits and issuance of loan and other lending
activities. The function performed by the Drivers, who were employed for
the purpose of various executives of the Bank, is not essential or integral to
the functions of the Bank. Accordingly, he submits that this was only a
Contract for service and the Drivers cannot be considered Employees of the
Bank. He submits that due to wrong questions having been framed by the
Labour Court, a wrong conclusion has been arrived at.
13. Insofar as regularization is concerned, Mr. Arora submits that the
essential settled position is that regularization is an executive function,
which is to be performed by the Management. It is not the Court’s duty to
direct regularization unless there is an Unfair Labour Practice, which the
Court sees in a particular case. There are various circumstances to be
considered such as whether there are posts, whether such posts are needed to
be created, as well as the financial burden on the establishment. Without
considering these factors, regularization cannot be directed. learned Counsel
further submits that Unfair Labour Practices is an exceptional circumstance,
where if a Court finds that the Management is deliberately keeping the
regular posts vacant and is continuing to engage contractual workers, the
same would be considered as a relevant factor. Only under these
circumstances, can regularization be directed, in accordance with law.

Labour Law Notes / January-2021

January 2021 Union Bank of India v. Mujahid Qasim 119
(Del.) (Prathiba M. Singh, J.)
14. Mr. Arora finally relies upon the Judgment in Indian Drugs &
Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.,
2007 (1) LLN 37 (SC) : 2007 (1) SCC 408, to argue that Ad-hoc/Daily Wage
Employees cannot be regularized as the creation and abolition of posts is
settled as being an executive function. If no vacant posts exist, the posts
cannot be directed to be created by the Court.
15. In conclusion, Mr. Arora has cited the following three Judgments:
Post-Master General, Kolkata and ors. v. Tutu Das (Dutta), 2007 (4) LLN
66 (SC) : 2007 (5) SCC 317; U.P. Power Corporation Ltd. v. Bijli Mazdoor
Sangh, 2007 (5) SCC 755; and A. Uma Rani v. Registrar, Cooperative
Societies and ors., AIR 2004 SC 4504, to submit that in this fact scenario,
the Employer-Employee relationship has not been established and thus the
award deserves to be set aside.
16. On the other hand, Ms. Aayushi Jain, learned Counsel appearing on
behalf of the various Employees, submits that the existence of an Employee-
Employer relationship is not to be determined on the basis of the designation
given to the Employee, but rather on the nature of the duties performed by
the Employee. She submits that the Employees, herein, were not merely
performing the duties of a Driver for a specific executive, but in fact were
engaged in performing various other functions on behalf of the Bank
including, for example, collecting cheques, collection of cash, collection of
packets and handing over of parcels. The said Employees were also given
letters by the Bank confirming that they were employed by the Bank.
According to her, even the salary slips clearly show that the Employees were
paid directly by the Bank. The language used in the cash payment
receipts/vouchers is that the Employees are being paid a ‘salary’.
17. Ms. Jain further submits that none of the Employees were paid
through the executives, and in fact, the evidence of the Management
Witness, at page 100 of the paper book, shows that the Witness MW1 had
admitted that there were no documents to show that the Executive of the
Bank had paid the Driver. The Management Witness has also confirmed that
the post of peon-cum-Driver still exists in the Bank.
18. Ms. Jain, thereafter, refers to the Order, dated 6th April 2018, in
which it was specifically recorded that the Bank is willing to regularize the
Workmen, subject to meeting of the requisite criteria as per the policy
guidelines. She heavily relies upon the fact that initially there were a total of
19 peon-cum-Drivers, as set out in Annexure-1 of the claims statement. Out
of the said 19, three have been admittedly regularized. The Employees, who
have not yet been absorbed are Mr. Mujahid Qasim, Mr. Mohan Singh, Mr.
Dinesh Kapoor, Mr. Rakesh Kumar and Mr. Manoj Chettri. She submits that
since there are only five Workmen left, who have already worked for more
than ten years, their services deserve to be regularized in terms of the first
Order passed by this Court.

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19. Ms. Jain, learned Counsel, emphasizes upon the fact that as per the
evidence of MW1, Ms. Anjali Kumar, the Manager of Bank, the services of
these persons were engaged after proper approval, right till the headquarters.
In fact, the approvals were granted as per the requirements prescribed by the
Bank and decisions were also ratified duly by the Head Office of the Bank.
She thereafter submits that though the Revision Petitions have been filed by
five Employees, she also represents the Trade Union, which, in turn,
comprises of all the other Employees who have not been regularized. Out of
the 19 Drivers, two Employees have already passed away.
20. Learned Counsel also relies upon various documents issued by the
Bank confirming that they were Bank’s Drivers. For e.g., page 90 of the
paper book, is a letter issued by the Bank to Mr. Mujahid Qasim, stating that
he is the Bank’s driver. She further submits that the fact that these
Employees are direct Employees of the Bank is clear, as these Workmen
have worked under more than one executive. According to her, whenever an
executive is transferred, the driver is not transferred. In her submission, this
proves that the Drivers were not the personal Employees of the executives,
but rather were Employees of the Bank. She submits that applying the
economic control and integration test to determine the Employer-Employee
relationship, the services of these Employees deserve to be regularized.
21. Ms. Jain further relies upon various case laws. In the first place, Ms.
Jain relies upon Hussain Bhai v. Alath Factory Employees Union, AIR
1978 SC 1410, to canvass the proposition that the Employer-Employee
relationship can be established by various facts. The test of economic control
as well as the integration test can be applied to the facts of this case. She
submits that as held in Hussain (supra), if the Employer has economic
control over the Employee, that would be a good indication of the fact, to
determine that the Employee is a direct Employee of the Employer, and not
of the Contractor. She submits that any camouflage or make-believe
methodology, that may be adopted, ought not to be accepted by the Court.
22. She further submits that the Drivers, in the present case, used to drive
the vehicles owned of the Bank and were being paid by the Bank. She
submits that if the Bank closes down, the Drivers would remain unemployed
as they were not the personal Drivers of the executives of the Bank. She
further submits that the vouchers, placed on record, clearly show that the
Bank was reimbursing all their expenses. According to her, this question of
fact, having been established before the Labour Court, does not deserve to be
revisited in Writ jurisdiction. She further submits that, applying the test of
integration and economic control, the Court ought to hold that these Drivers
are the Employees of the Bank itself. She relies upon these three Judgments
to support this proposition:
 Hussain (supra);

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January 2021 Union Bank of India v. Mujahid Qasim 121
(Del.) (Prathiba M. Singh, J.)
 India Literacy Board and ors. v. Veena Chaturvedi and ors., 2005
(10) SCC 79; and
 Bank of Baroda v. Ghemarbhai Harjibhai Rabari, 2005 (2) LLN 671
(SC) : AIR 2005 SC 2799.
23. Insofar as similar Drivers having been regularized and there being
availability of permanent posts, she submits that Drivers are entitled to
regularization in light of the following Judgments:
 State of Haryana v. Piara Singh, 1992 (2) LLN 1037 (SC) : AIR 1992
SC 2130;
 Workmen of Bhurkunda Colliery of Central Coalfields Ltd. v.
Management of Bhurkunda Colliery of Central Coalfields Ltd., 2006
(3) SCC 297; and
 ONGC v. Krishan Gopal, 2020 (2) LLN 17 (SC).
24. On the strength of these Three Judgments, she submits that, by virtue
of the Act being a beneficial legislation, in favour of the Workmen, if there
is a dispute between the Employer and Workman, the Court ought to
exercise its powers in favour of the Workman. For a Workman, the security
of tenure is essential, which can only happen by regularization. When
sanctioned posts exist, the non-regularization of few Employees while others
are being regularized, would completely be arbitrary and contrary to the
Guidelines laid down in ONGC (supra). She submits that despite the fact that
in ONGC, another Two-Judge Bench’s decision of the Supreme Court has
been referred to Larger Bench, the Guidelines are very clear, meaning that
whenever there is unfairness being shown towards the Workman, and if the
Employer engages in an Unfair Labour Practice, the temporary or Daily
Wage Workers ought to be regularized, as otherwise the same would be
discriminatory in nature. She further submits that whenever temporary
Workmen have worked for a long duration, they ought to be regularized in
their employment, so that they have a security of tenure and service, rather
than being on a tender hook.
25. Ms. Jain, learned Counsel submits on the basis of all these Judgments,
that the Bank continues in its mala fide/illegal conduct by challenging the
Labour Court’s awards. Also, the Workmen in these matters are completely
destitute as they do not have any employment, especially during the
pandemic. Their only livelihood was the job which they were performing at
the Bank. She further submits that despite Interim Orders passed by this
Court, two of the Drivers were removed from service which has entailed the
Workmen to file a Contempt Petition before this Court. This, according to
her, shows the perpetuation of illegal and mala fide conduct by the Bank.

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26. Ms. Jain, learned Counsel concludes by submitting that, for all these
reasons, the Writ Petitions filed by the Bank are liable to be dismissed, and
the Employees ought to be taken back into service. She further submits that
the Awards passed by the Tribunal should be upheld by this Court.
27. In rejoinder arguments, Mr. Arora, learned Counsel for the Bank,
submits that the designation of these persons is not important and the
question that the CGIT has framed, itself is a wrong question of law, i.e. as
to whether they were Workmen or not ? He submits that even if they were
Workmen, the question that ought to have been framed is whether there
existed an Employer-Employee relationship. He submits that even if the
Employees in these cases are Workmen, that does not necessarily mean that
they were Employees of the Bank.
28. His second submission is that the relief of regularization can only be
given if there is an “Unfair Labour Practice”. The said term is defined in the
5th Schedule of the Industrial Dispute Act, 1947. There are no allegations or
findings to the effect that the Bank has indulged in any Unfair Labour
Practice. Thus, the relief of regularization could not have been granted. On
this point, Ms. Jain, on the other hand, points out at that Serial No.10 from
this schedule would apply in the present case.
29. Mr. Arora thirdly submits that the documents relied upon by the
Workmen, for e.g.- the letters given to the Licensing Authority for renewal
of license, or other such documents, would not by itself be sufficient to
establish an Employer-Employee relationship, inasmuch as these Employees
have not been employed by the normal procedure of recruitment of the Bank.
He submits that the ONGC v. Petroleum Coal Labour Union, 2015 (6) SCC
494, decision, that has been relied upon by the Tribunal, has in fact been
referred to a Larger Bench in the Judgment of the Supreme Court ONGC v.
Krishan Gopal. Thus, according to him, reliance upon Judgment of ONGC
v. Petroleum Coal Labour Union, 2015 (6) SCC 494, by the Tribunal, may
not be correct as it may not be good law anymore.
30. Mr. Arora finally concludes his rejoinder submissions by submitting
that the usual recruitment of the Bank is either done through advertisement
or through employment exchange. The Bank may be willing to consider the
Employees for regularization, so long as the basic criteria of employment is
fulfilled. These were Ad-hoc Employees, who were employed as Drivers for
the personal usage of the Executives of the Bank and are not “entitled” to
regularization.
Analysis and Findings:
31. The short question is whether there exists an Employer-Employee
relationship between the Bank and all the Respondents, who were employed
as Drivers.

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January 2021 Union Bank of India v. Mujahid Qasim 123
(Del.) (Prathiba M. Singh, J.)
32. The case of the Union was that the Drivers were appointed against
sanctioned posts, after obtaining approvals from the Head Office. They used
to work, not merely with the executives but would perform various other
tasks including taking clearance from one branch to others, collection of
Cheque Books from one to another, carrying cash from one branch to
another, taking deliveries of gadgets such as computers and their accessories
from one branch to another, taking deliveries of the goods that were
consigned to the respective branches from different airlines, taking deliveries
of TDS cheques from other customers like the ministries, carrying cash
against NSC/deposits from post office, and other sundry works.
33. The Union also claimed that the cleaning expenses, salaries, petrol
reimbursement etc. were given by the Bank. The Workmen then sought
regularization, which was not acceded to by the Bank. Upon the demand of
regularization being raised by the Union, the Bank’s attitude towards the
Drivers completely changed.
34. The Drivers had worked for more than 240 days in each calendar year
and some Drivers were being selectively regularized. The Union
representing the drivers approached the CGIT, on the ground that the Drivers
are entitled to be regularized from the date of initial appointment.
35. The Bank’s case before the CGIT was that the Drivers were the
personal Car Drivers of the Executives, and it further pleaded that
recruitment is by a proper process through the employment exchange only
after the Candidate fulfils the eligibility criteria. Their submission was that
Ad-hoc Drivers cannot be given regularization as there is no master servant
or Employer-Employee relationship.
36. The Bank disputed the averments of the Union. It, however, admitted
that the expenses for maintenance, petrol and oil requirements, and
reimbursement of salaries was given by the Bank, as they were fulfilling the
needs of the higher-level officials in the Bank and were rendering services to
them. The Union filed a large number of documents, including letters,
vouchers, logbooks etc. supporting its claim. Evidence was led before the
CGIT, both by the Workmen and as also the Management. The Workmen
exhibited all the documents including the vouchers for payment, voucher for
overtime, travel allowance voucher, letters regarding outdoor duty,
Appointment Letters, etc.
37. The Witness on behalf of the Management confirmed that the bio-
data photograph, Driving License, address proof etc. of the Drivers was sent
to the Head Office of the Bank for ratification. The Witness also confirmed
that the parameters for engaging Drivers was issued by the Head Office. He
also admitted that logbooks are maintained, which show the activities
conducted by Drivers. He further admitted that posts for peon-cum-drivers
have also been sanctioned. The Witness, however, could not give the figures

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of personal Drivers absorbed by the Bank into its service. He confirmed that
three of the Drivers were absorbed during the pendency of the dispute.
38. After perusing the pleadings and the evidence, the CGIT vide the
impugned Order, dated 29th November 2017, directed for regularization of
the services of the Drivers. The findings of the CGIT in the impugned Order
are:
The documents on record show that there is correspondence between the
AGM and the Chief Manager of the Bank, regarding engagement of the
drivers and verification of the Drivers.
 Approval was sought for appointment of Drivers from the Head
Office.
 Enhancement of salary for Drivers is mentioned in a number of letters.
 Various expenses towards petrol, maintenance etc. was being released
by the Executives to the Drivers.
 No post of personal Driver exists in the Bank.
 The logbook of the vehicle, establishes the various activities which the
Drivers were engaged in.
 Claims for regularization of service have been considered by Board of
Directors against the post of peon-cum-Drivers.
 Drivers were also required to wear uniforms prescribed by the Bank
for which payment was also made by the Bank.
 Out of the 19 Drivers, only 10 Drivers are left for being regularized.
Many have already been regularized.
 When an Executive is either transferred or if they retire, the Driver
continues to serve the new incumbent.
 The Drivers were getting salary from Bank’s kitty.
 The Drivers were also doing other jobs assigned to them by the
Executives and hence cannot be termed as personal Drivers of the
executives.
39. Thereafter CGIT analyzed the applicable case law and held that the
demand of the Drivers for regularization is legal and valid. The operative
portion of the award reads as under:
“32. In view of this, the reference is answered in favor of the Claimants and
against the Management by holding that demand of the Claimants for
regularization of their service is both legal and valid. Services of the Claimants
herein, whose names are mentioned in Annexure-I attached with the statement of

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January 2021 Union Bank of India v. Mujahid Qasim 125
(Del.) (Prathiba M. Singh, J.)
claim, are liable to be regularized. The Award is passed accordingly. Let a copy
of this Award be sent for publication as required under Section 17 of the Act.”
40. The submissions of both Counsels are recorded in detail above. After
the conclusion of submissions, this Court had directed the learned Counsels
to place on record the details of actual number of drivers in respect of whom
the writs are to be decided inasmuch as there were several subsequent events
which had taken place including demise, non-traceable person etc.
Accordingly, Affidavits were filed both by the Union and by the Bank. On
10th November 2020, after perusing the Affidavits filed, it was recorded as
under:
“2. Both the parties have filed their respective lists Workmen. After discussing
the list with learned Counsels, it is clear that the present Petitions would now
only relate to 11 Drivers as contained in the list filed by the Union for the
Workmen, instead of 19 Drivers as mentioned in the Petitions. Some of the
Drivers are not traceable, some have been permanently absorbed and one Driver
has passed away.
3. It is also informed to the Court that out of the 11 Drivers, Mr. Gangadhar
Kushwaha, Mr. Ashok Kumar, Mr. Rajesh Kumar S/o Shri Purushotam Das and
Mr. Narain Ram are working on temporary basis with the Bank with four
different executives.
... ... ...”
41. Thus, the present Writ Petitions would now be restricted to 11
Drivers, namely, Mr. Bachan Singh, Mr. Navin Kumar, Mr. Mujahid Qasim,
Mr. Rakesh Kumar Vaid, Mr. Manoj Chettri, Mr. Mohan Singh Rawat, Mr.
Dinesh Kapoor, Mr. Gangadhar Kushwaha, Mr. Ashok Kumar, Mr. Rajesh
Kumar and Mr. Narain Ram. During the pendency of Industrial Disputes,
three drivers, namely, Mr. Baldev, Mr. Babu Lal and Mr. Surinder Kumar
have been regularized by the Bank.
42. Both sides have cited a large number of cases in support of their
respective arguments. The various tests to establish as to whether an
Employer-Employee relationship exists or not, are well settled. The same
need not be reiterated. The control test, the integration test etc. are also well
established. In Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of
Tamil Nadu and ors., 2004 (2) LLN 68 (SC) : 2004 (3) SCC 514, the
Supreme Court held that the control test and organization are not the only
factors set to be decisive. Various other factors would have to be considered
as well. The Court held that:
“38. The control test and the organization test, therefore, are not the only factors
which can be said to decisive. With a view of elicit the answer, the Court is
require to consider several factors which would have a bearing on the result: (a)
who is appointing authority; (b) who is the pay master; (c) who can dismiss; (d)
how long alternative service lasts; (e) the extent of control and supervision; (f)

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the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of
establishment; (h) the right to reject.”
... ... ...”
43. In Ram Singh and ors. v. Union Territory, Chandigarh and ors.,
2004 (1) SCC 126, the Supreme Court has held that the actual nature of the
relationship ought to be established before the Tribunal, as the same is a
question of fact. The Supreme Court further held that the integration test was
one of the relevant tests, and even though the formal employment is by an
independent Contractor, Management is not relieved of its liability. The
Court needs to discern as to whether the relationship is being camouflaged in
any manner.
44. In Balwant Rai Saluja v. Air India Ltd., 2014 (3) LLN 568 (SC) :
AIR 2015 SC 375, canteen Workers were held to be Employees of the
Corporation and further factors to determine the relationship, were laid
down. The court held that:
“61. Thus, it can be concluded that the relevant factors to be taken into
consideration to establish an Employer-Employee relationship would include,
inter alia, (i) who appoints the Workers; (ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss; (iv) who can take Disciplinary action; (v)
whether there is continuity of service; and (vi) extent of control and supervision,
i.e. whether there exists complete control and supervision. As regards, extent of
control and supervision, we have already taken note of the observations in
Bengal Nagpur Cotton Mills case (supra), the International Airport Authority of
India case (supra) and the NALCO case (supra).
... ... ...”
45. In Hussainbhai, Calicut v. Alath Factory Thezhilali Union,
Kozhikode and ors., 1978 (2) LLN 276 (SC) : 1978 (4) SCC 257, the
Supreme Court observed that the enquiry is meant to discern the naked truth,
though the arrangement on paper maybe different.
46. In the recent decision in Sushilaben Indravadan Gandhi & anr. v.
New India Assurance Co. Ltd., 2020 (2) LLN 268 (SC), S.L.P.(C) No.1170
of 2019), the difference between an independent teacher and a regular
teacher was discussed in the context of the control test, however, the
Supreme Court held that the control test itself may not be sufficient to
establish Employer-Employee relationship. The Supreme Court observed:
“... ... ...
24. A conspectus of all the aforesaid Judgments would show that in a society
which has moved away from being a simple agrarian society to a complex
modern society in the computer age, the earlier simple test of control, whether or
not actually exercised, has now yielded more complex tests in order to decide
complex matters which would have factors both for and against the Contract
being a Contract of service as against a Contract for service. The early ‘control

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January 2021 Union Bank of India v. Mujahid Qasim 127
(Del.) (Prathiba M. Singh, J.)
of the Employer’ test in the sense of controlling not just the work that is given
but the manner in which it is to be done obviously breaks down when it comes to
professionals, who may be employed. A variety of cases come in between cases
which are crystal clear - for example, a master in a School, who is employed like
other Employees of the School and who gives music lessons as part of his
employment, as against an independent professional piano player, who gives
music lessons to persons, who visit her premises. Equally, a variety of cases arise
between a ship’s master, a chauffeur and a staff reporter, as against a ship’s pilot,
a taxi Driver and a contributor to a Newspaper, in order to determine whether the
person employed could be said to be an Employee or an independent
professional. The control test, after moving away from actual control of when
and how work is to be performed to the right to exercise control, is one in a
series of factors which may lead to an answer on the facts of a case slotting such
case either as a Contract of service or a Contract for service. The test as to
whether the person employed is integrated into the Employer’s business or is a
mere accessory thereof is another important test in order to determine on which
side of the line the Contract falls. The three-tier test laid down by some of the
English Judgments, namely, whether wage or other remuneration is paid by the
Employer; whether there is a sufficient degree of control by the Employer and
other factors would be a test elastic enough to apply to a large variety of cases.
The test of who owns the assets with which the work is to be done and/or who
ultimately makes a profit or a loss so that one may determine whether a business
is being run for the Employer or on one’s own account, is another important test
when it comes to work to be performed by independent Contractors as against
piece-rated labourers. Also, the economic reality test laid down by the U.S.
decisions and the test of whether the Employer has economic control over the
Workers’ subsistence, skill and continued employment can also be applied when
it comes to whether a particular Worker works for himself or for his Employer.
The test laid down by the Privy Council in Lee Ting Sang v. Chung Chi-Keung,
1990 (2) A.C. 374, namely, is the person, who has engaged himself to perform
services performing them as a person in business on his own account, is also an
important test, this time from the point of view of the person employed, in order
to arrive at the correct solution. No one test of universal application can ever
yield the correct result. It is a conglomerate of all applicable tests taken on the
totality of the fact situation in a given case that would ultimately yield,
particularly in a complex hybrid situation, whether the Contract to be construed
is a Contract of service or a Contract for service. Depending on the fact situation
of each case, all the aforesaid factors would not necessarily be relevant, or, if
relevant, be given the same weight. Ultimately, the Court can only perform a
balancing act weighing all relevant factors which point in one direction as
against those which point in the opposite direction to arrive at the correct
conclusion on the facts of each case.
25. Given the fact that this balancing process may often not yield a clear result in
hybrid situations, the context in which a finding is to be made assumes great
importance. Thus, if the context is one of a beneficial legislation being applied to
weaker sections of society, the balance tilts in favour of declaring the Contract to
be one of service, as was done in Dharangadhara (supra), Birdhichand (supra),
D.C. Dewan (supra), Silver Jubilee (supra), Hussainbhai (supra), Shining Tailors
(supra), P.M. Patel (supra), and Indian Banks (supra). On the other hand, where

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the context is that of legislation other than beneficial legislation or only in the
realm of Contract, and the context of that legislation or Contract would point in
the direction of the relationship being a Contract for service then, other things
being equal, the context may then tilt the balance in favour of the Contract being
construed to be one which is for service.
... ... ...”
47. In Mudra Communications v. Ganesh Kumar and ors., W.P.(C)
No.4913 of 1997, dated 21st April 2010, the Court discussed the Judgment
in Punjab National Bank v. Ghulam Datsagir, 1978 (1) LLJ 312 (SC),
where the plea was that the Workman was the personal Driver of the
Executive of the Bank. In that case, the Delhi High Court had held that the
Workmen had failed to prove that the control and supervision over his
employment was with the Bank and this was affirmed by the Supreme Court.
In Bank of Baroda v. Ghemarbhai Harjibhai Rabari, 2005 (2) LLN 671
(SC) : AIR 2005 SC 2799, the Employee had produced three vouchers to
show that he had been paid sums of money towards wages, and that the same
was debited to the Bank. The Supreme Court held that the Driver was the
Bank’s Employee. The Court in Bank of Baroda (supra) held:
“... ... ...
While there is no doubt in law that the burden of proof that a Claimant was in the
employment of a Management, primarily lies on the Workman who claims to be
a Workman. The degree of such proof so required, would vary from case to case.
In the instant case, the Workman has established the fact which, of course, has
not been denied by the Bank, that he did work as a Driver of the car belonging to
the bank during the relevant period which come to more than 240 days of work.
He has produced 3 vouchers which showed that he had been paid certain sums of
money towards his wages and the said amount has been debited to the account of
the Bank. As against this, as found by the fora below, no evidence whatsoever
has been adduced by the bank to rebut even this piece of evidence produced by
the Workman. It remained contented by filing a Written Statement wherein it
denied the claim of the Workman and took up a plea that the employment of
such Drivers was under a scheme by which they are, in reality, the Employee of
the Executive concerned and not that of the Bank; none was examined to prove
the scheme. No evidence was led to establish that the vouchers produced by the
Workman were either not genuine or did not pertain to the Wages paid to the
Workman. No explanation by way of evidence was produced to show for what
purpose the Workman’s signatures were taken in the Register maintained by the
bank. In this factual background, the question of Workman further proving his
case does not arise because there was no challenge at all to his evidence by way
of rebuttal by the Bank.
…..
For the reasons stated above, we are of the considered opinion that the
Respondent-Workman in this case has established his claim as held by the
Tribunal, and we find no reason whatsoever to interfere with the impugned
order.

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January 2021 Union Bank of India v. Mujahid Qasim 129
(Del.) (Prathiba M. Singh, J.)
... ... ...”
However, in Mudra Communications (supra), a learned Single Judge of this
Court cited the Bank of Baroda decision but refused to hold that the Driver
was an Employee of the Management, as no vouchers have been produced to
show payment of salaries.
48. In the light of the above decisions, the factors which are to be
considered, to determine as to whether an Employer-Employee relationship
exists would inter alia, include:
(a) who is the Appointing Authority;
(b) who is the pay master;
(c) who can select and dismiss;
(d) how long does the alternative service last;
(e) the extent of control and supervision;
(f) the nature of the job, e.g., whether it is professional or skilled work;
(g) nature of the establishment;
(h) the right to reject;
(i) who can take Disciplinary action;
(j) whether there is continuity of service;
(k) whether the person was fully integrated into the Employer’s concern
(integration test);
(l) who organizes the work, i.e., supplies tools and materials; and
(m) who exercises control on when and how the work is to be performed.
49. An overall analysis of all the relevant judicial decisions, would show
that the facts herein, are similar to the facts of Bank of Baroda v.
Ghemarbhai Harjibhai Rabari, 2005 (2) LLN 671 (SC). In the said case,
the Supreme Court was dealing with a situation wherein, the Employees had
produced cogent evidence in the form of vouchers to show that they worked
as car Drivers for the Bank. The Supreme Court held that the Employees had
discharged their onus by producing these vouchers and hence the award of
the CGIT, reinstating the Workmen with full Back Wages, was upheld by
the Supreme Court.
50. By applying the above tests, analyzing the case laws cited, and
perusing the documents on record, as also the findings of the CGIT, there is
no doubt that an Employer-Employee relationship exists between the Bank

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and the Drivers. This is clear from an analysis of the documents placed on
record which establishes the following facts:
(a) All Respondents were working as Drivers with various Executives of
the Petitioner-Bank.
(b) At the time of appointment, the biodata of the Drivers was submitted
to the Bank, which was thereafter forwarded to the personnel
administrative division of the Bank, located in the Head Office at
Mangalore.
(c) The salary for the Drivers was being reimbursed by the Bank to the
Executives concerned, by means of vouchers.
(d) The Drivers have served in the Bank for several years.
(e) The Drivers did not merely work for the Executives, but also did
various other sundry jobs such as collection/delivery of documents/
packets/parcels/items/equipment from various locations for the Bank.
(f) Expenses incurred by them were reimbursed by the Bank.
(g) The Bank has issued letters confirming the salaries earned by the
Drivers.
(h) The Bank has facilitated the Driving License being obtained by the
Drivers, by issuing them Certificates that they are working in the Bank.
The text of one such certificate is set out below:
“This is to certify that Sh. Naresh kumar, s/o Sh. Daya ram is an Employee of
our Bank. He is working with us since last four years. As per our records he is
residing at D-5/103, Tisra Pusta, Vijay Colony, new Usman Pur, Delhi-110053.
This Certificate is issued in his specific request as he has to produce for making
Driving License.
We confirm the same.”
(i) The vouchers issued by the Bank for the monthly payments to the
Drivers, mention the particulars as “amount drawn for reimbursement of
Driver” or the “amount paid to the Driver. Reimbursed” @ page 120, 121
of the paper books “cash paid to Surinder on account of car Driver salary
month of May 2006 by AGM” @ page 124; etc.
(j) Copies of logbooks showing the details of travel of the Car, petrol
consumed, purpose etc.
The above facts have been gleaned from the large number of documents
placed on record and cannot be disputed by the Bank.
51. The documents on record also show that the Drivers have not been
exclusively used for the executives of the Bank but have also been serving

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January 2021 Union Bank of India v. Mujahid Qasim 131
(Del.) (Prathiba M. Singh, J.)
the Bank in various roles including picking up parcels, computers, running
errands, claiming reimbursements, taking delivery of cars and other sundry
jobs. Further, the Bank has given them letters and Certificates, repeatedly
confirming that they are the Drivers of the Bank for issuance of licenses and
for renewal of Driving Licenses. The initial appointment was also made after
confirmation with the Head Quarters of the Bank. Complete reimbursement
of salaries and well as expenses of the Drivers has been given by the Bank.
A logbook also has been maintained to supervise their day-to-day
movements and activities.
52. Therefore, irrespective of whichever test is applied, whether it be the
control test, or the integration test or any of the other tests, the above facts
clearly show that the functions performed by the Drivers was integral to the
everyday working of the Bank. The documents establish the existence of
Employer-Employee relationship and that the Drivers were the Employees of
the Bank. They were not retained through an independent Contractor and
that is not even the case of the Bank. The Bank’s case that the Drivers were
exclusively working for Executives is also negated, as it has been proved, on
record, that the Drivers would continue to remain in the same place
irrespective of the transfer or retirement of the Executive and they would be
placed under different Executives or the incumbent. The case of the Bank
that they were Employees of the Executives is thus belied.
53. Hence, in view of the above facts and discussion, this Court has no
doubt that the Drivers were the Employees of the Bank.
54. Dealing with the question of regularization of the Drivers in the Bank,
the Bank itself was willing to regularise the Employees as recorded in the
Order, dated 6th April 2018 which reads:
“W.P.(C) 3269 of 2018 & C.M. No.12882 of 2018 (stay)
1. By impugned Award, dated 29.11.2017 the Industrial Adjudicator while
allowing the Complaint under Section 33-A of the Industrial Disputes Act, 1947
(in short “I.D. Act”) filed by the Respondent directed his reinstatement with the
Petitioner-Bank observing that at the time of terminating his services no approval
as required under Section 33 of the I.D. Act, was obtained from the Court and
termination was illegal.
2. Learned Counsel for the Petitioner submits that the Respondent was personal
Driver of the Executive/Manager of the Petitioner-Bank and there was no
relationship of Employer and Employee between the parties. However, he
submits that there is a policy of regularisation of such personal Drivers with the
Petitioner-Bank as per the policy/guidelines subject to meeting out the requisite
criteria.
3. On taking steps, issue notice to the Respondent by all permissible modes.
4. List on 19.11.2018. Meanwhile, no coercive steps shall be taken against the
Petitioner till the next date of hearing.”

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132 LABOUR LAW NOTES 2021 (1) LLN

Even during oral arguments, learned Counsel for the Bank has submitted that
the Bank is willing to regularise, however, subject to certain conditions such
as fulfilment of eligibility criteria etc.,
55. The Supreme Court has recently considered the parameters for
regularization of Employees in Oil and Natural Gas Corporation v. Krishan
Gopal (supra). The Court held:
“... ... ...
23. The following propositions would emerge upon analysing the above
decisions:
(i) Wide as they are, the powers of the Labour Court and the Industrial Court
cannot extend to a direction to order regularisation, where such a direction
would in the context of public employment offend the provisions contained in
Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief
to Workmen including the status of permanency continues to exist in
circumstances where the Employer has indulged in an Unfair Labour Practice
by not filling up permanent posts even though such posts are available and by
continuing to employ Workmen as temporary or Daily Wage Employees
despite their performing the same work as regular Workmen on lower Wages;
(iii) The power to create permanent or sanctioned posts lies outside the judicial
domain and where no posts are available, a direction to grant regularisation
would be impermissible merely on the basis of the number of years of service;
(iv) Where an Employer has regularised similarly situated Workmen either in a
scheme or otherwise, it would be open to Workmen, who have been deprived of
the same benefit at par with the Workmen, who have been regularised to make
a Complaint before the Labour or Industrial Court, since the deprivation of the
benefit would amount to a violation of Article 14; and
(v) In order to constitute an Unfair Labour Practice Under Section 2(ra) read
with Item 10 of the Vth Schedule of the ID Act, the Employer should be
engaging Workmen as badlis, temporaries or casuals, and continuing them for
years, with the object of depriving them of the benefits payable to permanent
Workmen.
... ... ...”
56. Thus, regularization is not to be directed in a mechanical manner. The
regularization of Employees is the sole prerogative of the Management.
Unless and until the Employee has indulged in an Unfair Labour Practice,
temporary or Daily Wage Employees/ad-hoc Employees cannot be
regularized. The exception to that is contained in Paragraph 23(iv) of the
said Judgment, where the Supreme Court has held that if similarly situated
Workmen have been regularized, then other Workmen cannot be deprived of
the same benefit. In view of the fact that various Drivers, who were similarly
situated have already been regularized by the Bank, not extending the same

Labour Law Notes / January-2021

January 2021 Union Bank of India v. Mujahid Qasim 133
(Del.) (Prathiba M. Singh, J.)
benefit to the 11 Drivers, to whom these Petitions relate to, would be
discriminatory in nature, and violative of Article 14 of the Constitution.
57. For whatever reasons, the Drivers, who were similarly placed have
already been regularized and they as well as the others have rendered long
service. Each of the Drivers, in these Petitions, has been employed with the
Bank for at least 10 years. Considering the long duration of service and the
fact that they are clearly Employees of the Bank, their services deserve to be
regularized in accordance with the Judgment of the Supreme Court in Oil
and Natural Gas Corporation v. Krishan Gopal (supra).
58. Mr. Arora, learned Counsel for the Bank, has raised a fine distinction
in the wording of the reference and the manner in which the CGIT
considered the documents in evidence, on record. The distinction between an
“Employee” and a “Workman” though existing in law, the conflation
between the two by the CGIT would not affect the final relief being granted
in these cases, as the facts show that there exists an Employer-Employee
relationship.
59. Accordingly, the impugned Order by the CGIT does not warrant any
interference. The reinstatement of the Employees is upheld. It is directed that
the Bank shall regularize the services of the 11 Drivers whose names are
mentioned in the paragraph above (Paragraph 41).
60. All writs and pending applications are dismissed in the above terms.
Necessary steps shall be taken by the Bank within 6 weeks.
  

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134 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 134 (DB) (Del.)

IN THE HIGH COURT OF DELHI
Hima Kohli & Asha Menon, JJ.
L.P.A. No.595 of 2019 & C.M.Applns.49913-14 of 2019
1.5.2020
Manisha Priyadarshini .....Appellant
Vs.
Aurobindo College - Evening & others .....Respondents
MATERNITY BENEFIT ACT, 1961 (53 of 1961) — Right to Maternity
Leave — Notification, dated 11.10.2013 — Benefit of Maternity Leaves
only to Permanent Teachers — Resolution No.120(8), Appendix-V — AC
Resolution No.34, dated 23.4.2005 — ‘Admissible leaves’ — Exclusion of
Maternity Leaves to Ad hoc Teachers — Whether justified — Appellant
working as Ad hoc Assistant Professor since 7.8.2019 in different Colleges
affiliated with 3rd Respondent-Delhi University — University used to
renew Contract every 120 days by notional artificial breaks — Appellant
requested for Maternity Leave vide Letter, dated 4.1.2019 and 16.1.2019
— Representation of Petitioner rejected impliedly by crediting Salary of
only 18 days — When she reported for duties after birth of her child, she
was informed that she was no longer on rolls of College — Writ Petition
No.3160/2019 filed praying for Maternity Leave and quashing of
Notification dated 11.10.2013 which was dismissed in limine — On
challenge, held, Leaves other than Maternity Leave, such as Half Pay
Leave on Medical grounds, Casual and Earned Leaves could have been
granted — Contention of Respondents that she was not on rolls, not
acceptable — Details of extensions granted to her also show that her
reporting for duty on 20.3.2019 instead of 18.3.2019 or 19.3.2019 cannot
be taken against her in as much as all extensions have been made with a
break of at least one day — Appellant, working with Respondents for five
years, granted repeated extensions — No Complaint regarding her
performance — Declining grant of extension due to her pregnancy would
amount to penalizing a woman for electing to become a mother while still
employed — And, violative of basic Principles of Equality and also
depriving her protection under Articles 14, 16 & 21 of Constitution of
India — Service Law recognizes Principle of ‘Last Come First Go’ —
Appellant herein was senior-most among four other Ad hoc Assistant
Professors, who have been continued as Ad hoc till date — On this score
also act of Respondents neither reasonable nor justifiable assuming that
non-availability of Appellant on 27.3.2019 was real reason for non-
extension — Contention that Contract for Employment cannot be
specifically enforced not tenable as it is clear from law laid down in

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January 2021 Manisha Priyadarshini v. Aurobindo College - Evening 135
(DB) (Del.) (Asha Menon, J.)
Executive Committee, Vaish Degree College v. Lakshmi Narayan, 1976 (1)
LLN 474 (SC), that where termination or dismissal is invalid being
contrary to Principles of Natural Justice or in violation of a Statute,
question would rather become one of enforcement of right to protection
against unlawful action — Validity of Termination Order is subject to
Judicial Review to determine whether action of Respondent was illegal,
perverse, unfair or irrational — In view of matter, held, impugned
Judgment not sustainable and set aside — Termination Order, dated
29.5.2019 quashed and Respondents directed to appoint Appellant
forthwith to post of Assistant Professor on Ad hoc basis till such time
vacant posts are filled through regular appointments — Appeal allowed
with Cost of `50,000 imposed on Respondent Nos.1 & 2 — Pending
Applications disposed of. (Paras 15 to 34)
CASES REFERRED
Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain, 1976 (1) LLN
474 (SC) ............................................................................................................................20
GRIDCO Limited v. Sadananda Doloi, 2012 (1) LLN 21 (SC)..........................................26, 27
Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka,
1992 (2) LLN 434 (SC)......................................................................................................25
Om Prakash Goel v. Himachal Pradesh Tourism Development Corporation Ltd. Shimla,
1991 (2) LLN 420 (SC)......................................................................................................25
Rattan Lal v. State of Haryana, 1985 (4) SCC 43 ....................................................................25
Shrilekha Vidyarthi (Kumari) v. State of U.P., 1993 (1) LLN 623 (SC) ............................26, 28
State of Haryana v. Piara Singh, 1992 (2) LLN 1037 (SC) ......................................................25
State of Maharashtra v. Anita, 2016 (3) LLN 544 (SC)............................................................22
Union of India v. Satish Joshi, ILR 2013 (5) Del. 3504 ...........................................................21
Yogesh Mahajan v. Professor R.C. Deka, Director, All India Institute of Medical
Sciences, 2018 (3) SCC 218 ..............................................................................................23
Darpan Wadhwa, Senior Advocate with Kush Chaturvedi, Prerna Priyadarshini and
Aditi Agarwal, Advocates for Appellant.
Sudhir Nandrajog, Senior Advocate with Rajinder Dhawan and B.S. Rana, Advocates
for Respondent Nos.1 & 2/College; Mohinder J.S. Rupal, Advocate for Respondent
No.3/University.
Finding — L.P.A. allowed with costs.
JUDGMENT
Asha Menon, J.
1. This Appeal has been preferred against the Judgment, dated 20.8.2019,
whereby the learned Single Judge has dismissed in limine, W.P.(C)
8518/2019 filed by the Appellant/Petitioner with the following prayers:
(a) this Hon’ble Court be pleased to issue a Writ of Certiorari or any
other appropriate writ, order or direction under Article 226 of the
Constitution of India, quashing the Impugned Letter of Termination,
dated 29.5.2019 issued by the Respondent No.1 College:

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136 LABOUR LAW NOTES 2021 (1) LLN

(b) this Hon’ble Court be pleased to issue a Writ of Mandamus or any

other appropriate writ, order or direction under Article 226 of the
Constitution of India, directing the Respondent No.1-College to reinstate
the Petitioner to the post of Assistant Professor on Ad-hoc basis from
20.3.2019.
(c) Costs of the Petition be provided for.
2. The facts, as are relevant for the purposes of disposal of the present
Appeal, are that since 7.8.2019, the Appellant/Petitioner has been working as
an Ad-hoc Assistant Professor in different Colleges affiliated with the
Respondent No.3/University of Delhi and finally, in the Respondent
No.1/Sri Aurobindo College-Evening, of which the Respondent No.2 is the
Principal. According to the Appellant/Petitioner, the routine practice adopted
by the Respondents Nos.1 & 2/College and other colleges affiliated to the
Respondent No.3/University was to renew the contractual appointment of
Ad-hoc professors every 120 days, by enforcing a notional or artificial break
in service of one working day. The last renewal of the Appellant/Petitioner’s
Contract was done on 19.11.2018 from 19.11.2018 to 18.3.2019.
3. The Appellant/Petitioner claims to be the Senior-most Ad-hoc
Assistant Professor in the Department of English in the Respondents Nos.1
& 2/College. She states that as she was expecting her first child on
22.2.2019, she had requested the Respondents Nos.1 & 2/College for grant
of maternity leave along with all other eligible benefits under the Maternity
Benefit Act, 1961 and had specifically sought leave from 14.1.2019 till
24.5.2019, particularly, in view of the complications of pregnancy. This
request was made by her vide Letter, dated 4.1.2019. Since no response was
received thereto, she reiterated her request on 16.1.2019, seeking permission
to proceed on maternity leave from 21.1.2019 onwards.
4. On 3.2.2019, the Appellant/Petitioner was blessed with a daughter
prematurely. Since the Respondents Nos.1 & 2/College impliedly rejected
her representation for maternity leave by crediting a salary of only 18 days in
her account, the Appellant/Petitioner filed a Writ Petition bearing
No.3160/2019 on 20.3.2019, praying inter alia for grant of maternity leave
as well as for quashing of the Notification, dated 11.10.2013, issued by the
Respondent No.3/University extending the benefit of maternity leave only to
permanent Teachers. She also sought a mandamus to the Respondents Nos.1
& 2/College to extend maternity benefits to her.
5. The Appellant/Petitioner has averred that she reported back to the
Respondents Nos.1 & 2/College on 20.3.2019. On 26.3.2019, she reiterated
her request for maternity leave. On 27.3.2019, she received a communication
from the Respondents Nos.1 & 2/College informing her that the College had
not “forced” her to join duty and that she should also inform the College of
the date when she “intended” to join, thus, indicating that she was still on

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January 2021 Manisha Priyadarshini v. Aurobindo College - Evening 137
(DB) (Del.) (Asha Menon, J.)
their rolls. However, on 12.4.2019, the Respondent No.3/University
informed the Respondents Nos.1 & 2/College that maternity leave benefit
was not available to contractual Employees, which information was in turn
forwarded by them to the Appellant/Petitioner vide Letters, dated 16.4.2019
and 13.5.2019, thus, rejecting her request for grant of maternity leave.
6. The Appellant/Petitioner submits that on 14.5.2019, she had reiterated
her willingness to re-join the Respondents Nos.1 & 2/College from
24.5.2019 onwards, which was rejected by them vide Letter, dated
16.5.2019. However, on 24.5.2019, when she reported to the College for
joining her duties and repeated the same request on 27.5.2019, in a mala fide
and wholly illegal manner the Respondents Nos.1 & 2/College informed her
on 29.5.2019, that as her tenure had ended on 18.3.2019, she was no longer
on the rolls of the College and therefore, there was no question of her joining
back on duty or being assigned any work. Aggrieved thereby, she filed the
Petition, which has been dismissed in limine vide the impugned Order and
Judgment, dated 20.8.2019.
7. Mr. Darpan Wadhwa, learned Senior Advocate appearing for the
Appellant/Petitioner has submitted that the Appellant/Petitioner was the
Senior-most Ad-hoc Assistant Professor working in the English Department
of the Respondents Nos.1 & 2/College and that after her service was
terminated illegally and unlawfully, those who were junior to her, were
given extensions throughout the same academic year, right from May, 2019
till date. If there was a need for fewer Ad-hoc Teachers, then the last come
had to go first and not the Senior-most, i.e., the Appellant/Petitioner herein
particularly when she had disclosed her availability. It was further contended
that the practice had always been to give a break in service and therefore, it
did not lie in the mouth of the Respondents to claim that since the
Appellant/Petitioner had reported for duty on 20.3.2019, after the expiry of
her tenure on 18.3.2019, she had lost her right for extension of her term of
Ad-hoc appointment. It was also argued that it was only because the
Appellant/Petitioner had insisted on maternity benefits that, out of sheer
vengeance, her Ad-hoc appointment was not extended and therefore, the
Termination Letter was liable to be quashed.
8. On the other hand, Mr. Mohinder J.S. Rupal, learned Counsel
appearing for the Respondent No.3/University submitted that no Ad-hoc
Teacher was entitled to maternity leave as the Rules did not provide for the
same and the Appellant/Petitioner could not seek any such benefit or claim
extension of her tenure on the plea that when her tenure had ended on
18.3.2019, being on maternity leave, she was still on the rolls of the
Respondents Nos.1 & 2/College. It was also submitted that there is no vested
right in Ad-hoc teachers to claim extension of tenure.
9. Mr. Sudhir Nandrajog, learned Senior Advocate appearing for the
Respondents Nos.1 & 2/College supported the impugned Judgment and

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138 LABOUR LAW NOTES 2021 (1) LLN

pointed out that the offer of the Appellant/Petitioner to join duty on

24.5.2019, was neither here nor there since the summer vacation was to
commence on that date and the College was closed with no teaching activity.
He submitted that the Appellant/Petitioner had not disclosed that she was
ever willing or readily available for teaching in the following semesters and
therefore, it cannot be stated that the Respondents Nos.1 & 2/College had
violated any law while appointing other Teachers on an Ad-hoc basis who
were available to attend to the semester classes, even if they were junior to
the Appellant/Petitioner.
10. It was further contended on behalf of the Respondents Nos.1 & 2/
College that it was well within its right to terminate the appointment of the
Appellant/Petitioner as her appointment letter itself contained such a clause.
Since maternity leave was not available to the Appellant/Petitioner as per the
University Rules, her non-reporting for duty from 21.1.2019 to 18.3.2019,
was improper and in any case, non-extension of her tenure was clearly on
account of her unavailability to take classes because on her own showing,
she was attending to her new born baby and her repeated representations
were to the effect that it would be extremely difficult for her and her little
baby if she was forced to join on the threat of loss of job. According to
learned Counsel for the Respondents Nos.1 & 2/College, despite this, the
College was magnanimous enough to have asked the Appellant/Petitioner on
27.3.2019, as to when could she join the College but she waited till
14.5.2019 to respond to this letter, by which time, the College was about to
break for the summer vacation. Therefore, non-assignment of any work to
her on her request dated 27.5.2019, was neither illegal, nor mala fide. With
these pleas, the Respondents have prayed that the present Appeal merited
dismissal.
11. We have heard the submissions of the learned Counsel for the parties
and have carefully perused the record, including the correspondence
exchanged between the parties. Before proceeding further, it may be noted
here that vide Advertisement, dated 1.11.2019, the Respondents Nos.1 & 2/
College had invited applications for making appointments to the posts of
Assistant Professors on a permanent basis and the Appellant/Petitioner has
also applied for the same. Further, having regard to the fact that W.P.(C)
3160/2019 filed by the Appellant/Petitioner for grant of maternity leave, is
still pending, we shall refrain from going into that aspect. However, it does
appear from the material on record that the insistence of the Appellant/
Petitioner for grant of maternity benefit, has irked the Respondents Nos.1 &
2/College, which appears to be the underlying reason for non-extension of
her tenure beyond 18.3.2019.
12. There is no dispute that the Appellant/Petitioner was first employed
as an Ad-hoc Assistant Professor on 20.8.2014 and ever since then, her

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January 2021 Manisha Priyadarshini v. Aurobindo College - Evening 139
(DB) (Del.) (Asha Menon, J.)
appointment had been renewed by the Respondents Nos.1 & 2/College from
time to time in the following manner:
(i) 20.8.2014 to 17.12.2014
(ii) 19.12.2014 to 17.4.2015
(iii) 20.4.2015 to 22.5.2015
(iv) 23.5.205 to 19.7.2015 Vacation
(v) 20.7.2015 to 17.8.2015
(vi) 19.8.2015 to 16.12.2015
(vii) 18.12.2015 to 15.4.2016
(viii) 18.4.2016 to 20.5.2016
(ix) 21.5.2016 to 19.7.2017 Vacation
(x) 20.7.2016 to 16.11.2016
(xi) 18.11.2016 to 17.3.2017
(xii) 21.3.2017 to 19.5.2017
(xiii) 20.7.2017 to 16.11.2017
(xiv) 18.11.2017 to 17.3.2018
(xv) 20.3.2018 to end of session 2017-18
(xvi) 20.7.2018 to 16.11.2018; and
(xvii) 19.11.2018 to 18.3.2019

13. As can be seen from the above computation, the Appellant/Petitioner

has remained as an Assistant Professor on an Ad-hoc basis in the Respondents
Nos.1 & 2/College for five years with a break in service for a couple of days
on each renewal. There is also no dispute that amongst the four Ad-hoc
Assistant Professors in the English Department engaged by the Respondents
Nos.1 & 2/College, including the Appellant/Petitioner, she was the Senior-
most. Admittedly, the remaining three Ad-hoc teachers have been re-employed
by the Respondents Nos.1 & 2/College from May, 2019 onwards till date,
whereas, the Appellant/Petitioner has been denied that opportunity.
14. The Respondents No.1 &2/College have not raised any grievance that
the performance of the Appellant/Petitioner as a Teacher has been below par,
to give the others an advantage over her. The only fact that distinguishes her
from the others is that she elected to be a mother and on account of the
demands of the new born baby, sought maternity leave from the
Respondents Nos.1 & 2/College.
15. No doubt, the Rules of the Respondent No.3/University, as reflected
from Resolution No.120(8), at Appendix-V, approving the Report of the
Committee appointed by the Vice-Chancellor of the Delhi University in
terms of the AC Resolution No.34, dated 23.4.2005, excluded ‘maternity

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140 LABOUR LAW NOTES 2021 (1) LLN

leave’ from ‘admissible leave’. However, leave other than maternity leave,
such as half pay leave on medical grounds, casual leave and earned leave,
were admissible even at the time when the Appellant/Petitioner had
proceeded on leave, which could have been granted to her instead.
Therefore, the contention of the Respondents Nos.1 & 2/College that she
was not on the rolls when her tenure had ended, as she was not available for
teaching, cannot be accepted as a justification for non-extension of her
tenure thereafter. Moreover, the details of the extensions granted to the
Appellant/Petitioner over five years, as reproduced hereinabove, also show
that her reporting for duty on 20.3.2019, instead of on 18.3.2019 or
19.3.2019, cannot be taken against her inasmuch as all the extensions have
been made with a break of at least one day.
16. There is no gain saying that an act of an Administrative Authority has
to be pervaded by fairness and can never smack of arbitrariness or
whimsicality. In the instant case, the Appellant/Petitioner has been working
in the Respondents Nos.1 & 2/College for five years, having been granted
repeated extensions with a break in service, as found necessary by the
Respondents Nos.1 & 2/College, to maintain her appointment as Ad-hoc in
nature. There has been no Complaint regarding her work performance.
Therefore, her proficiency and ability did not form the basis of the decision
of the Respondents Nos.1 & 2/College to decline extending her services
despite the necessity, as is reflected from their continuing with the other Ad-
hoc Assistant Professors in the English Department as also Guest Lecturers.
17. The only reason that stares in the face is the fact that knowing that she
was an Ad-hoc teacher, the Appellant/Petitioner had applied for maternity
leave. Without commenting on the rule position regarding her entitlement to
maternity leave, which is the subject matter of a pending Writ Petition, we
decline to accept that as a legitimate ground for denying extension of tenure
to the Appellant/Petitioner. Such a justification offered by the Respondents
for declining to grant an extension to the Appellant/ Petitioner as she had
highlighted her need for leave due to her pregnancy and confinement would
tantamount to penalizing a woman for electing to become a mother while
still employed and thus pushing her into a choiceless situation as
motherhood would be equated with loss of employment. This is violative of
the basic principle of equality in the eyes of law. It would also tantamount to
depriving her of the protection assured under Article 21 of the Constitution
of India of her right to employment and protection of her reproductive rights
as a woman. Such a consequence is therefore absolutely unacceptable and
goes against the very grain of the equality principles enshrined in Articles 14
& 16.
18. Service law recognizes the principle of ‘last come, must go first’,
other things being equal. In the present case, the Appellant/Petitioner was the
Senior-most amongst the four Ad-hoc Assistant Professors, i.e. Ms. Manisha

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January 2021 Manisha Priyadarshini v. Aurobindo College - Evening 141
(DB) (Del.) (Asha Menon, J.)
Priyadarshini, (Appellant/Petitioner herein), Ms. Ipshita Nath, Dr. Vipin
Singh Chauhan and Ms. Jyoti Kulshreshtha, who have been engaged by the
Respondents Nos.1 & 2/College, their initial appointment dates being
20.8.2014, 6.8.2015, 14.10.2015 and 7.9.2017 respectively, which were
extended from time to time. It is thus apparent that the last one to be
appointed was Ms. Jyoti Kulshreshtha. The Ad-hoc appointments of the
other three Assistant Professors, except for the Appellant/Petitioner herein,
were lastly extended on 16.11.2019.
19. It is conceded by the Respondents Nos.1 & 2/College that all the
three Ad-hoc Assistant Professors, who are junior to the Appellant/Petitioner,
reckoned by the date of their engagement with the Respondents Nos.1 & 2/
College, have been continued as Ad-hoc Assistant Professors since July,
2019, till date. On this score also, the act of the Respondents Nos.1 & 2/
College neither appears reasonable, nor justifiable assuming that non-
availability of the Appellant/Petitioner on 27.3.2019, was the real reason for
her non-extension, as she had clearly informed the Respondents Nos.1 &
2/College of her availability on 24.5.2019. Moreover, the fact that the
summer vacations were to commence soon thereafter, also does not appear
to be a valid explanation since on two previous occasions, the Respondents
Nos.1 & 2/College had no hesitation in extending the tenure of the
Appellant/Petitioner during the vacations, as is apparent from the details of
her appointment reproduced in Para (12) above.
20. Learned Senior Counsel appearing for the Respondents Nos.1 & 2/
College has relied on several Judgments to contend that the Appellant/
Petitioner had no vested right to such an appointment made on an Ad-hoc
basis. We may proceed to examine each one of them. Relying on the
Judgment in Executive Committee of Vaish Degree College, Shamli and
others v. Lakshmi Narain and others, 1976 (1) LLN 474 (SC) : 1976 (2)
SCC 58, it has been contended that a Contract for employment cannot be
specifically enforced. No doubt, that is the law. However, from the instances
given in the said Judgment, it is clear that where termination or dismissal is
invalid, being contrary to the Principles of Natural Justice or in violation of
the provisions of a Statute, the question that would arise is not regarding
enforcement of a Contract of personal service, but would rather become one
of enforcement of the right to protection against unlawful action.
21. The second Judgment cited by the learned Senior Counsel is of this
Court, reported as Union of India and anr. v. Satish Joshi, ILR 2013 (5)
Del. 3504. Once again, it was contended on the basis of the said Judgment
that a party to a Contract has no right to claim that the Contract with him be
extendable, even if such a right is not afforded by the terms of the Contract
and the Contract had come to an end. However, this Judgment records that it
is settled law that even in matters of Contract, the State cannot act
whimsically or capriciously, or in an arbitrary manner. Furthermore, the

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142 LABOUR LAW NOTES 2021 (1) LLN

captioned case can be distinguished on facts, as in that case, the concerned

authority decided not to recommend extension of employment on the basis
of the performance of the Employee. As noticed hereinabove, in the present
case, no shadow has been cast on the capability/suitability of the Appellant/
Petitioner for appointment as an Ad-hoc Assistant Professor.
22. The third case relied upon on behalf of the Respondents Nos.1 & 2/
College is State of Maharashtra and others v. Anita and another, 2016 (3)
LLN 544 (SC) : 2016 (8) SCC 293. Once again, the facts of the said case are
vastly different from the instant case, in that, the issue there was whether the
Respondents were entitled to be appointed to permanent service and whether
they would have to face the selection process. In the present case, the
Respondents Nos.1 & 2/College has already advertised for filling up the
posts of Assistant Professors on a permanent basis and admittedly, the
Appellant/Petitioner has also applied for such an appointment and would be
participating in the selection process. It is not as if the Appellant/Petitioner is
seeking any exemption from the rigours of the selection process. Thus, the
said Judgment is not relevant for a decision in the present case.
23. The last case relied upon by the learned Senior Counsel for the
Respondents Nos.1 & 2/College is Yogesh Mahajan v. Professor R.C.
Deka, Director, All India Institute of Medical Sciences, 2018 (3) SCC 218.
The issue raised there was, once again, in relation to appointment on a
regular basis in view of the contractual services rendered by the Employee,
without adherence to the procedure for regular appointment. The Supreme
Court noticed that though the Petitioner before it could not show any
Statutory or other right to have his Contract extended beyond the tenure
fixed under the Contract, nevertheless, it accepted that he could have
claimed that the authorities concerned should consider extending his
Contract and in the said case, due consideration was in fact given to his
claim, but the Respondent/ All India Institute of Medical Sciences did not
find it appropriate or necessary to continue his contractual services. In the
instant case, there is not a whisper that extending the tenure of the
appointment of the Appellant/ Petitioner on an Ad-hoc basis, would be
inappropriate. By their own action, the Respondents No.1 &2/College have
disclosed that there was a necessity for the appointment of Ad-hoc professors
as they have continued to engage Ad-hoc Assistant Professors till date and
have confirmed before us that they propose to do so till the vacant posts are
filled up on completion of the selection process, which we are given to
understand is likely to take some time, due to procedural rigmaroles.
24. In short, the Judgments relied upon by learned Senior Counsel for the
Respondents Nos.1 & 2/College not only have no application to the facts of
the present case, but rather go to establish the case of the Appellant/
Petitioner that she had a right to be considered and could not be subjected to
the whimsical and arbitrary decisions of the Respondents when

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January 2021 Manisha Priyadarshini v. Aurobindo College - Evening 143
(DB) (Del.) (Asha Menon, J.)
fundamentally, there was a need for the appointment of Ad-hoc Assistant
Professors and her performance has remained blemish less throughout.
25. We may emphasise that in the present case, we are not concerned
with the regular appointment of the Appellant/Petitioner to the post of
Assistant Professor with the Respondents Nos.1 & 2/College. Given the fact
that process has already commenced and the Appellant/Petitioner would be
entitled to participate therein, the Judgments relied upon by the Appellant/
Petitioner, namely, Rattan Lal and others v. State of Haryana and others,
1985 (4) SCC 43; State of Haryana and others v. Piara Singh and others,
1992 (2) LLN 1037 (SC) : 1992 (4) SCC 118; and Karnataka State Private
College Stop-Gap Lecturers Association v. State of Karnataka and others,
1992 (2) LLN 434 (SC) : 1992 (2) SCC 29, may not be of any relevance
here. However, the Judgment in Om Prakash Goel v. Himachal Pradesh
Tourism Development Corporation Ltd. Shimla and another, 1991 (2) LLN
420 (SC) : 1991 (3) SCC 291, is apposite. It would be useful to reproduce
below, the observations made by the Supreme Court in the said case:
“6. In this context, the learned Counsel also questioned the Termination Order
from another angle. In that order it is mentioned that the services of the
Petitioner are no longer required, therefore they are terminated. But from the
record it is clear that juniors to the Petitioner are retained and they are continuing
in service. In the Affidavit it is clearly mentioned that juniors whose names are
given there are retained in service in violation of Articles 14 & 16 of the
Constitution. In the Counter-Affidavit only a vague reply is given simply stating
that the averments made by the Petitioner are not correct. In K.C. Joshi v. Union
of India, 1985 (3) SCC 153 : 1985 SCC (L&S) 656 : 1985 (3) SCR 869, it is
observed that: (SCC p. 158, Para 8) “If it is discharge simpliciter, it would be
violative of Article 16 because a number of store-keepers junior to the Appellant
are shown to have been retained in the service”. Likewise in Jarnail Singh case,
1986 (3) SCC 277 : 1986 SCC (L&S) 524 : 1986 (1) ATC 208 : 1986 (2) SCR
1022, it was observed as under: (SCC p. 292, Para 35)
“In the instant case, Ad-hoc services of the Appellants have been arbitrarily
terminated as no longer required while the Respondents have retained other
Surveyors, who are junior to the Appellants. Therefore, on this ground also, the
impugned Order of termination of the services of the Appellants are illegal and
bad being in contravention of the Fundamental Rights guaranteed under Articles
14 & 16 of the Constitution of India.”
After a careful perusal of the record we are satisfied that the juniors to the
Petitioner are retained. Therefore on this ground also the Termination Order is
liable to be quashed.” (emphasis added)
26. There is no denial in the instant case that juniors to the Appellant/
Petitioner are still employed by the Respondents Nos.1 & 2/College as Ad-
hoc Assistant Professors. Therefore, the action of dis-continuing with the
services of the Appellant/Petitioner on the ground that her earlier Contract
stood terminated by efflux of time, is unacceptable. In GRIDCO Limited
and another v. Sadananda Doloi and others, 2012 (1) LLN 21 (SC) : 2011

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(15) SCC 16, the Supreme Court had referred to its earlier decision in
Shrilekha Vidyarthi (Kumari) v. State of U.P., 1993 (1) LLN 623 (SC) :
1991 (1) SCC 212, and held as below:
“20. Even apart from the premise that the ‘office’ or ‘post’ of DGCs has a public
element which alone is sufficient to attract the power of Judicial Review for
testing validity of the impugned circular on the anvil of Article 14, we are also
clearly of the view that this power is available even without that element on the
premise that after the initial appointment, the matter is purely contractual.
Applicability of Article 14 to all executive actions of the State being settled and
for the same reason its applicability at the threshold to the making of a Contract
in exercise of the executive power being beyond dispute, can it be said that the
State can thereafter cast off its personality and exercise unbridled power
unfettered by the requirements of Article 14 in the sphere of contractual matters
and claim to be governed therein only by private law principles applicable to
private individuals whose rights flow only from the terms of the Contract
without anything more ? We have no hesitation in saying that the personality of
the State, requiring regulation of its conduct in all spheres by requirements of
Article 14, does not undergo such a radical change after the making of a
Contract merely because some contractual rights accrue to the other party in
addition. It is not as if the requirements of Article 14 and contractual obligations
are alien concepts, which cannot co-exist.” (emphasis added)
27. An attempt was also made to urge that the Respondents Nos.1 & 2/
College is not a State and the matter was contractual. But there can be no
dispute that Colleges are run with an element of Public interest and for
public good. The following observation of the Supreme Court in GRIDCO
Limited (supra) is an answer to the said submission:
“28. Recognising the difference between public and private law activities of the
State, this Court reasoned that unlike private individuals, the State while
exercising its powers and discharging its functions, acts for public good and in
Public interest. Consequently every State action has an impact on the Public
interest which would in turn bring in the minimal requirements of Public law
obligations in the discharge of such functions. The Court declared that to the
extent, the challenge to State action is made on the ground of being arbitrary,
unfair and unreasonable hence offensive to Article 14 of the Constitution,
Judicial Review is permissible. The fact that the dispute fell within the domain of
contractual obligations did not, declared this Court, relieve the State of its
obligation to comply with the basic requirements of Article 14.”(emphasis added)
28. It would be useful to once again revert back to the observations of the
Supreme Court in Shrilekha Vidyarthi (supra) in this context, which are
reproduced as under:
“22. There is an obvious difference in the Contracts between private parties and
Contracts to which the State is a party. Private parties are concerned only with
their personal interest whereas the State while exercising its powers and
discharging its functions, acts indubitably, as is expected of it, for Public good
and in Public interest. The impact of every State action is also on Public interest.
This factor alone is sufficient to import at least the minimal requirements of

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January 2021 Manisha Priyadarshini v. Aurobindo College - Evening 145
(DB) (Del.) (Asha Menon, J.)
public law obligations and impress with this character the Contracts made by the
State or its instrumentality. It is a different matter that the scope of Judicial
Review in respect of disputes falling within the domain of contractual
obligations may be more limited and in doubtful cases the parties may be
relegated to adjudication of their rights by resort to remedies provided for
adjudication of purely contractual disputes. However, to the extent, challenge is
made on the ground of violation of Article 14 by alleging that the impugned act
is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the
domain of contractual obligations would not relieve the State of its obligation to
comply with the basic requirements of Article 14. To this extent, the obligation is
of a public character invariably in every case irrespective of there being any
other right or obligation in addition thereto. An additional contractual
obligation cannot divest the Claimant of the guarantee under Article 14 of non-
arbitrariness at the hands of the State in any of its actions.” (emphasis added)
29. Thus, the Supreme Court has held in the above cases that where
Public interest is involved, the State would include instrumentalities of the
State and the Respondents herein cannot escape their obligations under
Article 14 of the Constitution on such a specious plea. The doctrine of
fairness has been developed in administrative law only to ensure that Rule of
Law prevails and to prevent failure of justice where the action that is
questioned, is administrative in nature. A duty has been cast on
administrative bodies to act fairly and reasonably and to ensure fair action in
discharging their functions.
30. While there is no doubt in our mind that Ad-hoc Employees cannot be
exempt from the process of regular appointment only because of their
legitimate employment on an Ad-hoc basis and ordinarily, on termination of
the Contract, such contractual or Ad-hoc Employees have no right to insist
on renewal of the Contract, in circumstances where there is arbitrariness writ
large, Courts have not hesitated in extending protection to the aggrieved
party. The validity of a Termination Order is subject to Judicial Review for
the Court to determine whether the action of the Respondents was illegal,
perverse, unreasonable, unfair or irrational. It is only when the action taken
by the authority is not vitiated by such infirmities that the Court would stay
its hands. In the instant case, we find that unreasonableness, unfairness and
irrationality is writ large in the action of the Respondents Nos.1 & 2/College,
inasmuch as they have continued with the services of others who are junior
to the Appellant/Petitioner, on an Ad-hoc basis and have deprived her of the
benefit of further Ad-hoc appointment, without any reasonable cause.
31. The only argument advanced by learned Senior Counsel for the
Respondents Nos.1 & 2/College was that the Appellant/Petitioner’s Ad-hoc
employment had ceased on 18.3.2019 and therefore, she could not claim further
service after such termination of Contract by efflux of time and that in any case,
she was unavailable for such Ad-hoc employment. Neither of these reasons can
withstand judicial scrutiny. The Contracts of the others have been extended after
their termination and the regular practice has been to give Ad-hoc Employees a

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146 LABOUR LAW NOTES 2021 (1) LLN

break in service. That being the case, after expiry of the earlier contract on
18.3.2019, the Appellant/Petitioner was justified in reporting for duty on
20.3.2019. Such a reporting for duty cannot be taken as her disinclination to
have a further tenure with the Respondents Nos.1 & 2/College.
32. The second argument of her unavailability, is also not borne out from
the record. The Appellant/Petitioner was in repeated communication with the
Respondents Nos.1 & 2/College, who, in turn, were in constant
communication with the Respondent No.3/University. On 27.3.2019, the
Respondents Nos.1 & 2/College had even asked the Appellant/Petitioner as to
by when she could join her duty and in response, she had informed that she
could join duty on 24.5.2019. Even if it was to be accepted that it was the last
working day before the summer vacations, it has been conceded that the
appointment of the other Ad-hoc Assistant Professors was renewed from
26.5.2019 to 19.7.2019, on vacation salary and thereafter, from 20.7.2019 to
16.11.2019 as Ad-hoc. In other words, when the Appellant/Petitioner had
expressed her availability for engagement on 24.5.2019 and when on the
following day, the others were actually appointed as Ad-hoc Employees, there
was no good reason for the Respondents Nos.1 & 2/College to have refused to
engage her either on 26.5.2019 along with the others, or at the very least from
20.7.2019, when the others were reappointed. The plea that it was on account
of non-availability of the Appellant/Petitioner to discharge her duties as an
Assistant Professor, that the Respondents Nos.1 & 2/College had not engaged
her services on an Ad-hoc basis, is completely unmerited and turned down.
33. In the light of the foregoing discussion, the impugned Judgment is not
sustainable and is accordingly set aside. We have no hesitation in quashing
the Termination Order, dated 29.5.2019, issued by the Respondents Nos.1 &
2/College, who are directed to appoint the Appellant/Petitioner forthwith to
the post of Assistant Professor in the English Department on an Ad-hoc basis
till such time that the vacant posts are filled up through regular appointment,
a process that is already underway. The appointment letter shall be sent by
email by the Respondents Nos.1 & 2/College within one week, upon receipt
whereof, the Appellant/Petitioner shall report for duty immediately on the
lockdown being eased/lifted or through e-Mail/online, as may be directed by
the Respondents Nos.1 &2/College.
34. The Appeal is allowed with costs of `50,000 (Rupees Fifty Thousand
only) imposed on the Respondents Nos.1 & 2/College to be paid to the
Appellant/Petitioner within four weeks. The pending applications are
disposed of.
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January 2021 D.T.C.Kanwar v. Singh 147
(Del.) (Prathiba M. Singh, J.)
2021 (1) LLN 147 (Del.)
IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
W.P.(C) No.1787 of 2001 & W.P.(C) No.3114 of 2010
4.12.2020
D.T.C. .....Petitioner
Vs.
Kanwar Singh .....Respondent
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Section 33(2)(c) —
Approval of Authority in case of Removal — Reinstatement of Workman
— Respondent, working as Conductor with Petitioner-Corporation,
dismissed after Enquiry on charges of Embezzlement — Petitioner moved
Application before Industrial Tribunal seeking approval for removal of
Respondent — Pending approval, Respondent raised Industrial Dispute
— Tribunal passed Award directing Reinstatement of Workman —
Petitioner’s Application under Section 33(2)(c) also dismissed — On
challenge, held, records of case reveal that after dismissal of Application
under Section 33(2)(c), Respondent taken back in service and
superannuated in March 2014 — In Order, dated 2nd April, Back Wages
not granted by Tribunal — Said Order not challenged by Workman and
attained finality — Petitioner also accepted Order and reinstated
Workman — Hence, challenge to Reinstatement by Petitioner no longer
survive — Regarding Retiral benefits, amount of `6,88,435 paid to
Workman rightly or wrongly — As Workman served Petitioner w.e.f.
2009-2010 and superannuated in 2014, he would be entitled to retiral and
other benefits including Pension — Release of said amount would be
subject to adjustment of amount already paid to Workman — Petitioner
directed to release Retirement benefits and other dues accordingly —
Writ Petitions disposed of accordingly. (Paras 9 & 14 to 16)
Manisha Tyagi, Advocate for Petitioner.
D.K. Sabat, Advocate for Respondent.
Finding — W.P. disposed of.
JUDGMENT
1. This hearing has been done through Video Conferencing.
2. These are two Petitions filed by the Delhi Transport-Corporation
(hereinafter ‘DTC). The First Petition challenges the impugned Order, dated
28th November 2000 passed by the Industrial Tribunal, by which the
application filed by the Petitioner under Section 33(2)(b) of the Industrial
Disputes Act, 1947 was rejected and the Petitioner was said to have not

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148 LABOUR LAW NOTES 2021 (1) LLN

proved the allegations of mis-conduct against the Respondent. The operative

portion of the impugned Order is set out below:
“16. In view of the finding of the Issue No.1, I hold that Petitioner has not been
able to establish that the Respondent committed misconduct. The ingredients of
provision of Section 33(2)(b) of I.D. Act, have not been fully satisfied.
Consequently, the Petition is rejected.”
3. In the Second Petition, the challenge is to the Award, dated 2nd April
2009, by which the Tribunal had directed the Respondent/Workman to be
reinstated. The operative portion of the impugned Award is set out below:
“30. Relief: In view of my findings on various issues referred to above,
Workman is entitled to be reinstated with continuity in service and other
consequential benefits but without Back Wages. Reference is accordingly
answered. Award is accordingly passed.”
4. The brief background is that the Respondent - Mr. Kanwar Singh was
working as a Conductor in the DTC and he was on duty in a bus plying from
Delhi to Faridabad. The allegation of DTC was that he had embezzled a sum
of `50 by cutting ticket-series while serving on the said bus. Notice of
misconduct was served upon the Respondent, an Enquiry Officer was
appointed and an enquiry was conducted, report of which was submitted to
the Disciplinary Authority. Finally, vide Order, dated 22nd September 1992,
the Disciplinary Authority passed an order of removal from service.
5. The DTC then moved an application under Section 33(2)(b) of the
Industrial Disputes Act, 1947, before the Industrial Tribunal, seeking
approval for the action of removal. While the said Petition was pending, the
Workman also raised an Industrial Dispute, which was referred for
adjudication. On 28th November 2000, the DTC’s Petition under Section
33(2)(b) was dismissed, which is the subject matter of challenge in W.P.(C)
1787/2001. Thereafter, the Tribunal passed the impugned Award, dated 2nd
April 2009 in the Workman’s Petition, by which reinstatement was directed.
6. Ms. Manisha Tyagi, learned Counsel for DTC submits that in W.P.(C)
1787/2001, notice was issued on the first date of hearing, and for various
reasons, which are not being gone into, a sum of `6,88,435 came to be paid
to the Respondent, under the presumption that the same was the amount
payable under Section 17-B of the Industrial Disputes Act. This payment has
been reflected in the Order, dated 23rd November 2009 and Order, dated
12th April 2010. Since there was no order for release of such amounts, an
internal enquiry was also conducted.
7. Learned Counsel further submits that without going into the question
as to whether the said amount was payable at the time or not, the admitted
position is that the Workman has received the entire amount of `6,88,435.
She thereafter, submits that the Workman was reinstated in terms of the
Award, dated 2nd April 2009, and has now superannuated w.e.f. 31st March

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January 2021 D.T.C.Kanwar v. Singh 149
(Del.) (Prathiba M. Singh, J.)
2014. It is her submission that since the Award, dated 2nd April 2009 did not
grant any Back Wages to the Respondent, the amount of `6,88,435 was not
liable to be paid.
8. On the other hand, Mr. Sabat, learned Counsel appearing for the
Respondent submits that the Workman is not being paid his retirement
benefits, Pension and other benefits, which are liable to be paid to him. Mr.
Sabat, does not accept the fact that he is not entitled to Back Wages from the
time of removal till reinstatement.
9. After going through the records of this case and the Orders passed in
both these Writ Petitions, it is clear that the DTC’s application under Section
33(2)(b) seeking permission to discharge the Workman was dismissed. Thus,
the Workman was taken back in service in April 2009 and has even
superannuated in March 2014. The Order, dated 2nd April 2009 passed by
the Industrial Tribunal is clear to the effect that no Back Wages were granted
to the Workman. The said order having not been challenged by the
Workman, has attained finality. The submission of learned Counsel for the
Workman cannot accepted by this Court. The DTC has also, in effect, also
accepted the Order, dated 2nd April 2009 and reinstated the Workman. In
view thereof, the challenge to the reinstatement in W.P.(C) 3114/2010 would
no longer survive.
10. However, the only point that remains is whether the Workman is
entitled to be given his retirement benefits or not. The Order, dated 23rd
November 2009 reads as under:
“The award that has been challenged by the Management of the Delhi Transport
Corporation directs only for reinstatement of the Respondent. This award does
not grant him Back Wages. It sounds strange that the Respondent has already
been paid `6,88,435 by the Management of the Petitioner under Section 17-B on
account of his Wages up to 30.9.2004. It seems that there is serious a lapse on
the part of the Management of the Petitioner in making payment to the
Respondent from state exchequer little realising that the payment is being made
for no work being taken from the Respondent. The Petitioner in case it was
aggrieved by the impugned Award then it could have reinstated the Respondent
without prejudice to its rights and contentions once an application under Section
17-B was filed so that payment was not made to the Workman without work.
The chairman of the Petitioner is, therefore, directed to conduct a fact-finding
inquiry to ascertain the lapse on the part of the concerned official and take
necessary action against him to ensure that Public money is not wasted in the
manner it seems to have been done in the present case. The Chairman is directed
to submit his report to this Court by next date of hearing.
List on 12.4.2010.
Order dasti under the signatures of the Court Master.”
11. In the above order, this Court noticed that the payment of the amount
was quite a strange development as Back Wages were not awarded to the

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150 LABOUR LAW NOTES 2021 (1) LLN

Workman. Accordingly, the Court directed a fact-finding inquiry to be

conducted.
12. The enquiry was conducted by the Vigilance Department of the DTC
and report, dated 7th June 2010 was also submitted. Thereafter in Order
dated 12th April 2010 this Court records as under:
“Vide Order, dated 23rd November 2009 the Chairman of the Petitioner DTC
was directed to conduct a fact-finding inquiry. The Counsel for the Petitioner
states that the facts were not correctly represented before this Court on that date.
The position as it emerges is as under:
This Writ Petition has been filed against the order of the Labour Court rejecting
the application of the Petitioner DTC under Section 33(2)(b) of the Act. Though
the Writ Petition was accompanied with an application for stay of the said order
but no stay was granted and the application remained pending. On 20th
September 2004 finding that there is no stay of the Order impugned, the
Petitioner DTC was directed to deposit the entire Wages due to the Respondent
Workman until 30th September 2004 in this Court. CM No.12349/2003 was filed
by the Respondent No.1 Workman under Section 17-B of the Act and which was
also pending. The Petitioner DTC instead of depositing the amount in this Court
as ordered, on 17th February 2005 handed over a cheque for `6,88,435 to the
Counsel for the Respondent-Workman and it was noted in the order of that date
that the same is towards payment as directed under Section 17-B. However there
was no order under 17-B. The Counsel for the Petitioner DTC today clarifies that
the aforesaid payment was in terms of the Order, dated 20th September 2004 but
instead of being deposited in the Court was erroneously handed over to the
Respondent-Workman. No further payment has been made to the Respondent
Workman, thereafter. The application under Section 17-B remains pending.
Today, it is also disclosed that the Respondent-Workman had also raised an
Industrial Dispute qua his removal from service. In the said Industrial Dispute an
award is stated to have been now made in March, 2009 in which the Workman
though has been held to be entitled to reinstatement but without any Back
Wages. It is stated that the Petitioner DTC is filing a Writ Petition challenging
that award of reinstatement. The Counsel for the Respondent-Workman states
that the Respondent-Workman has not challenged yet the award granting him
only reinstatement and denying him any Back Wages.
In view of the award aforesaid, it appears that the Petitioner is not entitled to the
sum of `6,88,435 so received by him. In the circumstances, the inquiry by the
Chairman directed by this Court on 23rd November 2009 is justified. The
Counsel for the Petitioner DTC states that the said inquiry is underway. The
outcome thereof be stated by way of Affidavit definitely within six weeks of
today.
In view of the aforesaid, it will be expedient to hear this Writ Petition along with
the Writ Petitions challenging the award on the Industrial Dispute.
List on 28th July 2010 awaiting the other Writ Petitions, if any.”
13. A perusal of the fact-finding report shows that the responsibility has
been assigned on the accounts department for having prepared the cheque in

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January 2021 D.T.C.Kanwar v. Singh 151
(Del.) (Prathiba M. Singh, J.)
the name of the Workman instead of the Registrar, DHC. The conclusions of
the report are as under:
“... ... ...
The officials of Accounts Department (HQ) i.e. Dy. Manager (Pay) HQ Sh.
Begram, Accountant (Pay) HQ Shri Sant Parkash and the then A.I. (pay) Sh.
Bhim Singh, who also did not bother to examine the relevant documents viz.
sanction proposal/approval of L.F.C., relevant Court Order, dated 20.9.2004
already provided, while processing preparation of cheque requested for by the
D.M. (KJD). Thus, the recklessness on the part of Accounts Department i.e. Pay
& Bill Section (HQ) in the matter of cheque preparation for aforesaid Workman
cannot be ruled out. However, except Sh. Bhim Singh the then A.I. (Pay), the
remaining Employees as discussed has already been retired from the services of
the Corporation. Hence, Sh. Bhim Singh the then A.I. (Pay) is also responsible
for not gone through sanction approval at the time of cheque preparation.
The panel Advocate not advocating the matter/properly had already been
depaneled for his laxity by the competent authority as per approval dated
4.8.2005.
The position of facts finding/fixing up responsibility asked for, is emerged out on
the basis of material available, discussion of evidences and various statement is
being submitted for further course of action at appropriate level.”
14. Insofar as the retirement benefits are concerned, there is no doubt
from a reading of the above orders as also the Inquiry Report, that the
amount of `6,88,435 has been, rightly or wrongly, paid to the Workman.
Accordingly, since the Workman has served with DTC w.e.f. 2009-2010 and
superannuated in 2014, the Workman would be entitled to retirement and
other benefits, including Pension. However, release of the said amount
would be subject to adjustment of the amount already paid to the Workman
of `6,88,435.
15. The DTC is accordingly directed to release the retirement benefits
and other statutory dues, if any, to the Workman after adjustment of
`6,88,435, and any other sums which the Workman may have already
received. The Pension etc. would be paid to the Workman in accordance
with the applicable rules. Ordered accordingly.
16. Both Writ Petitions are disposed of, in the above terms.
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152 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 152 (Del.)

IN THE HIGH COURT OF DELHI
Suresh Kait, J.
W.P.(C) No.89 of 2019, C.M.A. Nos.486 & 14962 of 2019
20.8.2019
Rajeev Agarwal .....Petitioner
Vs.
Union of India and others .....Respondents
DELEGATION OF AUTHORITY [DoA] MANUAL, Clause 4.14 — HR
POLICY, Clause 4.4.3.6 — STANDARDS OF CONDUCTS AND
PERFORMANCE OF HR POLICY (PLL), Section 4 — COMPANIES
ACT, 2013 (18 of 2013), Section 178 — Exercise of Powers pertaining to
HR — Competent Authority for Disciplinary Action and awarding
punishment — Following of process by HR Department — Procedure for
imposing penalty of Removal — Petitioner, an Officer of Senior Level in
Petronet LNG Ltd. is a whistle blower against corruption and made
representations to Chairman of Company as well as CVC and Director-
CBI — Aggrieved by this, Respondent-6 started victimization of
Petitioner and issued Charge-sheet to him without any Preliminary
Enquiry — Reply submitted by Petitioner not found to be satisfactory
and he was asked to defend himself before Inquiry Committee —
Petitioner wrote to CMD/Respondent-6 that Committee has no legal force
as same not constituted with approval of Chairman/Board of Directors —
Request of Petitioner to allow him as an Assisting Officer, was declined
and Inquiry proceeded ex parte — Inquiry Committee held charges as
proved against Petitioner and asked Petitioner to submit his Reply within
a week failing which Order will be passed — Petitioner did not file his
Representation on being granted further time, instead filed present
Petition challenging Inquiry Report and Charge-sheet — Held, Charge-
sheet sent through Reporting Officer carried approval of MD & CEO —
Initiation of Disciplinary proceedings according to applicable Rules of
Company — As per Clause 4.14 of DoA Manual powers pertaining to HR
vests with MD & CEO — As per Clause 4.4.3.6 of HR Policy, Competent
Authority for Disciplinary action and punishment is MD & CEO for
Officers and Directors concerned — Section 4 of HR Policy (PLL) clearly
lays down process to be followed by HR Department in consultation with
MD & CEO for any action including Disciplinary action — Thus, MD &
CEO is Competent Authority and has full powers for initiation of
Disciplinary action against any Officer of PLL — If penalty of Removal is
imposed, procedure prescribed under Section 178 of Companies Act
required to be followed — However, for minor and other penalties, MD &

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January 2021 Rajeev Agarwal v. Union of India 153
(Del.) (Suresh Kait, J.)
CEO would be Competent Authority — Court finds from record that MD
& CEO approved issuance of Charge-sheet — Hence, contention of
Petitioner and ration of Judgments relied upon are of no assistance to
Petitioner — In view of allegations of corruption, Chief Vigilance
Commissioner directed to inquire into allegations made by Petitioner
against Respondent 6 and take action as per law — Petitioner given
liberty to file response to findings of Inquiring Authority within three
weeks — On receipt of response, Respondent to consider same and pass
Order as per law — Writ Petition disposed of accordingly. (Paras 62 to 71)
CASES REFERRED
A.K. Kraipak v. Union of India, 1969 (2) SCC 262.................................................................30
Ajay Hasia v. Khalid Mujib Sehmavardi, AIR 1981 SC 487 ...................................................17
Delhi Integrated Multi Model Transit System Ltd. v. Rakesh Aggarwal, W.P.(C)
Nos.2380-81/2010, date 6.7.2012 ....................................................................................11
E. Busali v. Commandant, 1994 FLR (68) Kar. 993................................................................34
Essar Steel Ltd. v. Union of India, C.A. No.4610 of 2009, dated 19.4.2016......................10, 58
Government of Andhra Pradesh v. M.A. Majeed, 2006 (3) LLN 587 (AP)..............................29
Indian Olympic Association v. Veeresh Malik, W.P.(C) No.876/2007, dated 7.1.2010 ..........16
Inspector General of Police v. Thavasiappan, 1996 (2) LLN 515 (SC) ....................................22
Petronet LNG Ltd. v. Indian Petro Group, C.S.(OS) No.1102/2006, date 13.4.2009.........14, 58
Sahani Silk Mills (P) Ltd. v. ESI Corporation, AIR 1994 SCW 3832 ......................................28
Shree Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna jayanti Mahotsav
Smarak Trust v. V.R. Rudani, AIR 1989 SC 1607.............................................................18
State of Punjab v. V.K. Khanna, AIR 2001 SC 343 .................................................................35
State of U.P. v. Saroj Kumar Sinha, 2010 (1) LLN 527 (SC)...................................................33
Transport Commissioner v. A. Radha Krishana Moorthy, 1995 (1) SCC 332 .........................22
Union of India v. B.V. Gopinath, 2014 (1) SSC 351..........................................................21, 22
Union of India v. Mohd Nasseem Siddiqui, ILLJ 2005 (931) MP ...........................................32
Union of India v. Sunny Abraham, W.P.(C) No.7649/2015, dated 25.8.2017 .........................23
Raj Kishor Choudhary, Shakeel Ahmed, Anupam Bhati & Nukul Chaudhary,
Advocates for Petitioner.
Ripu Daman Bhardwaj, CGSC, T.P. Singh, Advocate, Sudhir Nandrajog, Senior
Advocate, Shishir Prakash, Vijay M. Chauhan, Karuna Krishan Thareja, Sandeep
Prabhakar, Amit Kumar & Vikas Mehta, Advocates for Respondents.
Finding — W.P. disposed of.
JUDGMENT
1. Vide the present Petition, the Petitioner seeks Mandamus for quashing
of ex parte report of Inquiry Committee, dated 18.12.2018 and Charge-sheet,
dated 21.8.2018 issued to the Petitioner and further seeks direction to the
Respondents to hold CBI/CVC Inquiry against the Respondent No.6 for
Financial corruption being committed by the said Respondent.
2. The brief facts of the case are that the Petitioner, who is an Officer of
President level and senior most Permanent Employee of the Company,
Petronet LNG Limited, is the victim of highhandedness of Corrupt Officers
present within the Company. Since the Petitioner is a whistle blower against

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the corruption and has made various Financial Corruption charges against
the Respondent No.6, he being in the commanding position victimizing the
Petitioner without any rhyme and reason so that the Petitioner be kept
silence against the corruption.
3. The Petronet LNG Limited is a joint venture Company formed by the
Government of India to import LNG and set up LNG terminals in the
country. It involves India’s 4 leading Central Public Undertaking Companies
namely GAIL, ONGC, IOCL & BPCL and these four PSU’s have 50% share
equity in the Petronet LNG Limited, thus, falls within the definition of
‘State’ under Article 12 of the Constitution of India. As per Section 17.3.2 of
HR Policies of Petronet LNG Limited, the person equal to the post of Vice
President and above is entitled for one Club Membership. The Petitioner
being in the position of Senior Vice President applied for one Club
membership and the Company made direct payment to the Club and thereby
he was allowed to take one club membership by the Company itself in the
year 2013 as per the prevailing Rules. The said Company invited a Tender
for 3.8.2015 for construction of one LNG storage tank at Dahej. Three
parties purchased the Tender documents and out of that, 2 bids were received
on 31.3.2016. One bid was received from M/s. L & T Hydrocarbon
Engineering Limited and another was from M/s. IHI Corporation, Japan.
Since the bid of M/s. L & T Hydrocarbon Engineering Limited did not meet
technical eligibility criteria, its bid was rejected. The only single qualified
bid of M/s. IHI Corporation, Japan was opened on 10.5.2016 and it was
found that the bidder had quoted around `640 crore EPC (Engineering,
Procurement and Construction) Costs (without taxes and duties). The
Petitioner being the member and the other members of the Tender
Committee and the Director (Technical) and Director (Finance) objected to
this high value Tender, comparing the same bidder had been awarded
contract for construction of two LNG storage tank at Dahej for `1042 crore
and, therefore, value of one tank is around `521 crore. The Petitioner as well
as the others of the Tender committee along with both Directors mentioned
above were fully justified in objecting the same as prima facie the tender for
`640 crore was very high. The Respondent No.6 being MD & CEO of the
Company instead of accepting the recommendation of Tender committee,
recommended to Award the Tender for `537.50 crore. However, M/s. IHI
Corporation, Japan did not agree with the present value of the Tender and,
accordingly, it was cancelled and the Tender was re-invited. Since the
Tender was cancelled due to the stand taken by the Tender committee of
which the Petitioner was also a member, the Respondent No.6 became
annoyed with the Petitioner. Despite, outstanding career of the Petitioner
throughout his service, his Annual Performance Report 2016-2017 was
lowered from outstanding to good and he was transferred to Dahej from
Headquarter, Delhi without having any position of President Level at Dahej.
Respondent No.6 favoured one Mr. Pushp Khetrapal, who was a President

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January 2021 Rajeev Agarwal v. Union of India 155
(Del.) (Suresh Kait, J.)
(O & M) and also Chief Ethical Officer (Chief Vigilance Officer) in the
Company and he was made President (BD & Projects) and his reporting also
got changed from Director (Technical) to Director (Finance) in order to
promote unethical business practices as Chief Vigilance Officer, who is also
made incharge of business development, head of procurements, head of
projects and finance with him.
4. Being aggrieved by the aforesaid unethical practice of Respondent No.
6, the Petitioner made a Confidential Letter/Representation to the Chairman
of the Company as well as Chief Vigilance Commissioner and Director CBI.
The Petitioner on 2.7.2018 wrote a letter to the Chairman of the Petronet
LNG Limited about the financial and procedural irregularities committed by
Respondent No.6 in awarding foundation day celebrating contract to M/s.
Pine Tree Pictures Pvt. Ltd. owned by his family friends on the basis of
nomination despite of the fact that the candidature of M/s. Pine Tree Pictures
Pvt. Ltd. had not been considered by the Tender Committee and without
inviting any further Tender, Respondent No.6 without approval of Tender
Committee awarded contract in favour of M/s. Pine Tree Pictures Pvt. Ltd.
for `55 lakhs and made advance payment without any Bank Guarantee
violating rules and regulations of the Company and with this Letter the
Petitioner attached a copy of the approval note and the page of Face book
showing, the Proprietor of M/s. Pine Tree Pictures Pvt. Ltd. family friend of
Respondent No.6 in evidence.
5. Being aggrieved by all these confidential communications made by the
Petitioner to the Chairman of the Petronet LNG Limited, the Respondent No.
6 started victimizing the Petitioner and in this process, he issued a Charge-
sheet to the Petitioner without any Preliminary Inquiry. The Petitioner was
asked to submit his reply on the above charges on 31.8.2018 through e-Mail
but the Senior Manager (HR) wrote a Letter to the Petitioner on 8.9.2018
that the reply submitted by the Petitioner did not find to be satisfactory,
therefore, an Inquiry Committee was constituted and the Petitioner was
asked to defend himself before the Inquiry Committee. The Petitioner sent a
Representation to the member of Inquiry Committee as well as the Chairman
and MD & CEO/Respondent No.6 of the Company stating therein that the
present Inquiry Committee has no legal force as the same has not been
constituted with the approval of Chairman/Board of Directors and the
Inquiry is being conducted at the instance of Respondent No.6 against whom
an Inquiry is already going on since earlier at the instance of the Petitioner,
which is yet to be concluded. Just to pressurise the Petitioner a false,
frivolous and incompetent Charge-sheet has been handed over to the
Petitioner for disclosing financial as well as the procedural corruption being
committed by the Respondent No.6 repeatedly.
6. Further case of the Petitioner is that on 21.11.2018, the Petitioner
submitted an application before the Chairman of the Petronet LNG Limited

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156 LABOUR LAW NOTES 2021 (1) LLN

for requesting to allow him an Assisting Officer for his Defence before the
Inquiry Committee but till date no Assisting Officer has been allowed to
defend the Petitioner before the Inquiry Committee and the Inquiry
Committee proceeded ex parte and concluded the Inquiry against the
Petitioner by recording findings that all the three charges as levelled in the
Charge-sheet, dated 21.8.2018 are proved. After recording of finding against
the Petitioner, the Senior Manager (HR) wrote a Letter to the Petitioner to
submit his Representation within one week upto 31.12.2018, failing which
the Competent Authority will pass order on the charges levelled against him.
After receiving the e-Mail, dated 24.12.2018 sent by the Company to the
Petitioner, on 31.12.2018 he sent an e-Mail to the Chairman with copy to
Board of Directors, Prime Minister Office, Hon’ble Corporate Office and
Finance Minister, Petroleum Minister, Cabinet Secretary, CVC, CBI, CAG,
Secretary, Minister of Corporate Affairs, CVO, etc.
7. Learned Counsel for the Petitioner submits that it is established that
Respondent No.6 has repeatedly violated the Companies Act 2013, rules
made thereunder and rules & regulations of PLL and Board approved policy
for doing corruption. The corruption by MD & CEO (Respondent No.6) of a
Company having significant role in energy Security of country is a matter of
national concern and cannot be confined to Company alone. If a MD & CEO
(Respondent No.6) of the Company is involved in corrupt practices,
Employees are duty bound to object and can write with supporting
information/documents to higher authorities, various transparency,
accountability, investigation bodies of Government etc. for urgent action in
the matter to prevent damage to Company and country. Accordingly, the
Petitioner being “Whistle Blower” informed about following serious
financial irregularities by MD & CEO (Respondent No.6), mentioned in
Paragraph 20k in a tabular form of “Grounds” in the Petition to various
authorities such as Chairman PLL, Board member of PLL, CVC as well as
CBI. However, no action has been taken against Respondent No.6 on these
following Corruption Charges so far:
(a) Award of contract to Respondent No.6’s daughter’s Firm M/s.
CUSTOM MADE FILMS without tender at exorbitant price of `16 lakh
for making film of Dahej LNG Terminal, the highly sensitive film was
uploaded on internet.
(b) Award of work of `55 lakh without Tender to family friend’s firm
M/s. Pine Tree Pictures Pvt. Ltd.
(c) Appointment of Shri Manoj Pawa as Sr. Vice President (HR & BE) in
a single day in violation of provision of Companies Act 2013, without
any advertisement. Shri Pawa is neither having requisite qualification nor
experience.

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January 2021 Rajeev Agarwal v. Union of India 157
(Del.) (Suresh Kait, J.)
(d) Award of contract of `36.27 lakh to M/s. Giant Reel related to
daughter firm M/s. Custom made Films without tender. An additional
amount of `4.65 lakh for travel/lodging & boarding was also paid to the
firm illegally. Apart from this `3.19 lakh was also paid to M/s. MAD
Dance Company wrongly for appreciation of performance. Miscellaneous
cases of corruption/unethical business practices, misconduct of Sh. Manoj
Pawa, CEA to Respondent No.6, while on deputation in Petronet LNG
Ltd. from GAIL with the support of Respondent No.6.
(e) Sh. Manoj Pawa, who is a crony of Respondent No.6, took special
incentive of `1.5 lakh form PLL, without approval by Board.
(f) Sh. Manoj Pawa got his personal Car-Honda City No.HR26BV1963
repaired many times from M/s. Sugoi Motors at the cost of PLL.
(g) Sh. Manoj Pawa engaged Munna Kumar Singh, Driver at the Cost
PLL, for which he is not entitled.
(h) Sh. Manoj Pawa has taken a laptop and ipad from PLL for, which he
was not entitled.
(i) Sh. Manoj Pawa and Respondent No.6 with their wives visited
Munnar Hill Station in September 2016 on holidays and used high end
hired cars at the cost of PLL.
8. Learned Counsel for the Petitioner further submitted that the
Respondents in their Counter Affidavits could not specifically deny these
corruption charges levelled by the Petitioner but argued various points with
respect to maintainability of the Writ Petition and justifying in issuing
Charge-sheet and proceedings etc.
9. On the issue of maintainability of the Writ Petition under Article 226
of the Constitution of India is concerned, learned Counsel for the Petitioner
argued that the name of the Company is “Petronet LNG Limited”, so it is a
“public Limited Company” as per Section ‘4-Memorandum-(1)” of
Companies Act 2013 and not a “Private Company” as wrongly mentioned at
several places in Counter Affidavits by the Respondents. PLL was formed as
a joint venture Company by Government of India in 1998, in pursuance of
cabinet decision on 4.7.1997. The PLL is the instrumentality of Government
because it comes under purview of “other authorities” of “state” under
Article 12 of the Constitution of India, because:
(a) That the deep and pervasive control is exercised by Government over
administrative, financial and functional activities of PLL.
(b) That the Central Government Directive, dated 6.3.2007 to PLL
regarding fixation of gas prices was upheld by Hon’ble Supreme Court of
India.

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(c) That there is significant financial control by 50% shareholding by four

Central Government PSUs.
(d) That the PLL fall within the purview of CVC.
10. Thus, it is submitted that the Writ Petition is maintainable as PLL is
“state” within the meaning of Article 12 of the Constitution of India. To
strengthen his arguments, reliance is placed on the case of Essar Steel Ltd. v.
Union of India and others, C.A. No.4610 of 2009, dated 19.4.2016, the
directive of Central Government to PLL under their Letter, dated 6.3.2007 was
upheld by Hon’ble Supreme Court of India on 19.4.2016. Thus, it is obvious that
the Government exercises administrative as well as financial control over PLL.
11. In addition to above, in the case of Delhi Integrated Multi Model
Transit System Ltd. v. Rakesh Aggarwal, W.P.(C) Nos.2380-81/2010, dated
6.7.2012, this Court under Para 48, 55 & 59 of its Judgment delivered on
6.7.2012 held as below:
“48. The argument of the Petitioner that the Directors nominated by the GNCTD
are non-executive Directors, whereas those nominated by the IDFC are executive
or functional directors, whereas those nominated by the IDFC are executive or
functional directors is neither here nor there. Merely because the directors
nominated by the GNCTD on the Board of Directors of the Petitioner-Company
are non-executive Directors, it does not mean that they have no role to play, or
responsibility to share, in the decision making process of the Board. They are
entitled to, and do participate in the Board meeting and are entitled to raise issues
and even obstruct or oppose any move proposed by the Directors nominated by
IDFC, if they are so instructed by the GNCTD, or if they are of the opinion that
the same may not be in the overall interest of the Company, or of the
Shareholder GNCTD whom they represent on the Board of Petitioner-Company.
They perform a higher duty of participating on policy making, and, therefore,
discharge a higher responsibility than the routine and mundane day-to-day tasks,
which are left to be performed by others. Mere lack of day-today responsibility
on the shoulders of the nominee directors of GNCTD does not dilute their
powers, responsibilities and privileges as directors of the Petitioner-Company.”
12. From the above Judgment, it is obvious that four Directors from
Central Govt. Public Sector Undertaking and Chairman from Ministry of
Petroleum and Natural Gas and one Director from Govt. of Gujarat on the
Board of PLL exercise substantial administrative, Functional & Financial
Control over PLL:
“55. In the present case, the Petitioner-Company had been initially incorporated/
established by the GNCTD. The equity share capital of the Company, before
GNCTD entered into the SHA with IDFC, had been fully subscribed to and paid-
up by the GNCTD. Even after having entered into the SHA with IDFC,
GNCTD’s share capital contribution continues to be 50%, which is significant
and therefore “Substantial” for the purpose of the Act.”

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January 2021 Rajeev Agarwal v. Union of India 159
(Del.) (Suresh Kait, J.)
13. From the above Judgment, it is obvious that 50% shareholding
subscribed by Central Government Public Sector Undertaking in PLL is a
significant holding:
“59. Merely because, the Petitioner-Company is not receiving financial aid or
assistance in the form of debt from the Government, and the salaries and other
expenses of the Petitioner are being paid out of the conclusion that the Petitioner-
Company is not “substantially financed” by the Government.” (Annexure J-2)
14. Moreover, in the case of Petronet LNG Ltd. v. Indian Petro Group
and another, C.S.(OS) No.1102/2006, dated 13.4.2009, this Court, under
Para 64 of its Judgment Pronounced on 13.4.2009 held as under:
“64. Though the Plaintiff disputes that it performs any governmental or public
function, it does not deny being a Company with an equity base of `1200 crores,
of which 50% is subscribed by Central Government Public Sector Undertakings.
Although such undertakings are not majority equity holders, and narrowly miss
that description by one percent, nevertheless, they have a significant
shareholding. Equally, the Plaintiff does not deny-rather it even asserts that the
negotiations conducted for the purpose of gas and allied products, are meant to
service the needs of the community and the consumer base in India. Understood
in a broad sense, therefore, it is engaged in a vital public function. Its other
Shareholders are no doubt, non-state entities. Yet, there is a crucial public
interest element in its functioning; 50% of `1200 crores shareholding is
controlled by the Public Sector understanding, which are directly answerable to
the Central Government and parliament. Therefore, the claim for confidentially
had to be necessarily from the view of the Plaintiff’s accountability to such
extent as well as its duties which have a vital bearing on the availability and
presence of gas in the country.” (Annexure J-3)
15. Learned Counsel from the above Judgments submitted that it is
obvious that PLL is engaged in vital public function.
16. In the case of Indian Olympic Association v. Veeresh Malik and
other, vide W.P.(C) No.876/2007, dated 7.1.2010, this Court held as under:
“60. This Court therefore, concludes that what amounts to “substantial” financial
cannot be straight-jacketed into rigid formulae, of Universal application. Of
necessity, each case would have to be examined on its own facts. That the percentage
of funding is not “majority” financing, or that the body is an impermanent one, are
not material. Equity, that the institution or organization is not controlled, and is
autonomous is irrelevant; indeed, the concept of non-Government Organization
means that it is independent of any manner of Government control in its
establishment, or Management. That the Organization does not perform - or
predominantly perform – “Public” duties too, may not be materials, as the object for
funding is achieving a felt need of a Section of the public, or to secure larger societal
goals. To the extent of such funding, indeed. The organization may be a tool, or
Vehicle for the executive Government’s policy fulfilment plan. This view, about
coverage of the enactment, without any limitation, so long as there is public
financing...” (Emphasis supplied) (Annexure J-4)

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17. In the case of Ajay Hasia and others v. Khalid Mujib Sehmavardi &
others, AIR 1981 SC 487, the Hon’ble Supreme Court has also emphasized
in Para-11 as below:
“11. The Court emphasized that the concept of agency or instrumentality of the
Government is not limited to a corporation or Society created by a Statute but is
equally applicable to a Company or a society and in each individual case would
have to be decided on a consideration of relevant factors.” (Annexure J-5)
18. In case of Shree Anandi Mukta Sadguru Shree Muktajee
Vandasjiswami Suvarna jayanti Mahotsav Smarak Trust and others v.
V.R. Rudani, AIR 1989 SC 1607, the Hon’ble Supreme Court of India in
Para 19 considered the scope and extent of power of High Court to issue
Writs to those bodies performing public functions. The Supreme Court after
referring to De Smith’s Judicial Review of Administrative action and
relevant case law held as under:
“19. The term “authority” used in Article 226, in the context, must receive a liberal
meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of
enforcement of fundamental right under Article 32. Article 226 confers power on
the High Court to issue Writs for enforcement of the fundamental rights as well as
non-fundamental rights. The words “Any person or authority” used in Article 226
are, therefore, not to be confined only to statutory authorities and instrumentalities
of the state. They may cover any other person or body performing Public duty. The
form of the body concerned is not very much relevant. What is relevant is the
nature of the duty imposed on the body. The duty must be judged in the light of
positive obligation owed by the person or authority to the affected party. No matter
by what means the duty is imposed. If a positive obligation exists Mandamus
cannot be denied.” It is also held that if any private organization discharge public
function and Public duties a Writ of Mandamus can be issued under Article 226 of
the constitution of India.” (Annexure J-6)
19. Accordingly, learned Counsel for the Petitioner concluded his
arguments on the maintainability and submitted that it is obvious that the
words “Any person or Authority”, used in Article 226 of the Constitution of
India, are, therefore, not to be confined only to Statutory Authorities and
instrumentalities of the State. They may cover other person or body
performing Public duty. Thus, the present Petition is maintainable to be
adjudicated by this Court.
20. On the issue of Charge-sheet and appointment of committee, learned
Counsel for the Petitioner submitted that learned Counsel of the Respondents
argued that Section 178(2) of Companies Act, 2013 does not mention that
Charge Memo should be approved by the Disciplinary Authority and it can
be approved by a Subordinate to the Disciplinary Authority. The learned
Counsel for the Petitioner contradicted to the argument of learned Counsel
for the Respondents by arguing that Charge Memo/Sheet issued to the
Petitioner is not approved by the Disciplinary Authority (Board of Directors)

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January 2021 Rajeev Agarwal v. Union of India 161
(Del.) (Suresh Kait, J.)
and it is signed by an Officer five ranks junior to the Petitioner and,
therefore, is non-est in the eyes of law.
21. To strengthen his arguments on the point raised above, learned
Counsel for the Petitioner cited the Judgment of Hon’ble Supreme Court of
India in the case of Union of India and others v. B.V. Gopinath, 2014 (1)
SSC 351, wherein in Paragraph 41 & 55 held as under:
“41. We are unable to interpret this provision as suggested by the Additional
Solicitor General, that once the Disciplinary Authority approves the initiation of
the Disciplinary proceeding, the Charge-sheet can be drawn up by an authority
other than the Disciplinary Authority. This would destroy the underlying
protection guaranteed under Article 311(1) of the constitution of India. Such
procedure would also do violence to the protective provision contained under
Article 311(2), which ensures that no Public servant is dismissed, removed or
suspended without following a fair procedure in which he/she has been given a
reasonable opportunity to meet the allegations contained in the Charge-sheet.
Such a Charge-sheet can only be issued upon approval by the appointing
authority i.e. Finance Minister.”
“55. Although number of collateral issues had been raised by the learned
Counsel for the Appellants as well as the Respondents, we deem it appropriate
not to opine on the same in view of the conclusion that the Charge-sheet/Charge
Memo having not been approved by the disciplinary was non-est in the of law.”
(Annexure J-7)
22. Learned Counsel for the Petitioner argued that the Respondents placed
reliance on two Judgments of Hon’ble Supreme Court of India and had filed
copy of these two Judgments in the Court during arguments of the present case
on 26.4.2019. One Judgment was in the case of Inspector General of Police v.
Thavasiappan, 1996 (2) LLN 515 (SC) : 1997 (1) LLJ 191, and the second
one was in the case of Transport Commissioner v. A. Radha Krishana
Moorthy, 1995 (1) SCC 332 The Judgment in the case of Transport
Commissioner v. A. Radha Krishana Moorthy is cited in the Judgment in the
case of Inspector General of Police v. Thavasiappan. The Judgment of
Inspector General of Police v. Thavasiappan is cited under Para 16 in the
Judgment of Union of India and Others v. B.V. Gopinath, 2014 (1) SCC 351.
As such both the Judgments are quoted in the above mentioned case of Union
of India and others v. B.V. Gopinath. The view taken in these two Judgments
has been rejected by the Hon’ble Supreme Court of India in the case of Union
of India and others v. B.V. Gopinath (supra).
23. It is further submitted that these two Supreme Court Judgments on
which reliance is placed by Respondents are also quoted under Para 29 of the
Judgment in the case of Union of India and others v. Sunny Abraham in
the matter of W.P.(C) No.7649/2015, dated 25.8.2017 wherein this Court has
held under Paragraph 30 as under:

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“30. It is clear from the aforesaid quotation that earlier the view taken was that
initiation of Disciplinary proceedings can be by an authority subordinate to the
appointing authority. This view was also responsible for the belief and
foundation that the Charge Memo could be issued by an authority subordinate to
the appointing authority and another approval viz. The formal Charge-sheet to be
issued, was not required. This view has been specifically rejected and not
accepted in B.V. Gopinath (supra). The ratio in B.V. Gopinath (supra) has to be
applied with full vigour force in cases where there is violation of Rules 14(3) of
the rules for after the Departmental proceedings are over, possibility of ex-post
facto approval is unacceptable and it is in this context that the term non-est has
been used.” (Annexure J-8)
24. Learned Counsel for the Petitioner argued that from the Judgment of
Hon’ble Supreme Court of India in Para 3(ii) and Judgment of this Court in
Para 3 (v) above, it is well settled that Charge Memo/Sheet require approval
of Disciplinary Authority before conducting Disciplinary proceedings. It is,
therefore, inferred that Charge-sheet issued to the Petitioner having not been
approved by the Board of PLL being Disciplinary Authority under Section
178(2) of the Companies Act 2013, is non-est in the eyes of law. The
Disciplinary process is to germinate from Board of PLL being the
Disciplinary Authority.
25. It is further argued that Counsel for the Respondents has shown the
noting on the file to this Court containing alleged approval of Charge-sheet
by MD & CEO i.e. Respondent No.6 and placed reliance on this approval.
Learned Counsel further argued that the Competent Authority (CA) towards
the Disciplinary Action and punishment is MD & CEO i.e. Respondent No.6
and placed reliance on Sections 4.4.3 & 4.4.3.6 of HR Policies-Section 4-
Standards of Conducts & Performance annexed as Annexure SA-1 and copy
of minutes of Nomination and remuneration committee meeting annexed as
Annexure SA-2 with the Supplementary Affidavit filed by the Respondent
Nos.4, 5 & 6. Thus, it is necessary for clarification in the matter to reproduce
relevant Sections 6, 178(2), 179(1) & 179(3) of the Companies Act 2013 and
the same are, therefore, reproduced as below:
“Section 6. Act to override, Memorandum, Articles etc.— Save as otherwise
expressly provided in this Act:
(a) The provisions of this act shall have effect notwithstanding anything to the
contrary contained in the Memorandum or Articles of a Company, or in any
agreement executed by it, or in any Resolution passed by the Company in
general meeting or by its Board of Directors, whether the same be registered,
executed or passed, as the case may be, before or after the commencement of
this act; and
(b) Any provision contained in the Memorandum, Articles, Agreement or
Resolution shall, to the extent to which it is repugnant to the provisions of this
Act, become or be void, as the case may be.”
Section 178(2):

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January 2021 Rajeev Agarwal v. Union of India 163
(Del.) (Suresh Kait, J.)
“(2) The Nomination and Remuneration Committee shall identify persons, who
are qualified to become directors and, who may be appointed in senior
management in accordance with the criteria laid down, recommend to the
Board their appointment and removal and shall carry out evaluation of every
director’s performance.”
Section 179(1):
“179. Powers of Board.—
(1) The Board of Directors of a Company shall be entitled to exercise all such
powers, and to do all such acts and things, as the Company is authorised to
exercise and do: Provided that in exercising such power or doing such act or
thing, the Board shall be subject to the provisions contained in that behalf in
this Act, or in the Memorandum or Articles, or in any regulations not
inconsistent therewith and duly made thereunder, including regulations made
by the Company in general meeting:
Provided further that the Board shall not exercise any power or do any act or
thing, which is directed or required, whether under this Act or by the
Memorandum or Articles of the Company or otherwise, to be exercised or done
by the Company in general meeting.”
Section 179(3):
“(3) The Board of Directors of a Company shall exercise the following powers
on behalf of the Company by means of Resolutions passed at meetings of the
Board, namely:
(a) to make calls on shareholders in respect of money unpaid on their shares;
(b) to authorise buy-back of securities under Section 68;
(c) to issue Securities, including debentures, whether in or outside India;
(d) to borrow monies;
(e) to invest the funds of the Company;
(f) to grant loans or give Guarantee or provide Security in respect of loans;
(g) to approve financial statement and the Board’s report;
(h) to diversify the business of the Company;
(i) to approve amalgamation, merger or reconstruction;
(j) to take over a Company or acquire a controlling or substantial stake in
another Company;
(k) any other matter, which may be prescribed:
Provided that the Board may, by a Resolution passed at a meeting, delegate to
any committee of directors, the managing director, the manager or any other
Principal Officer of the Company or in the case of a Branch Office of the
Company, the Principal Officer of the branch office, the powers specified in
Clauses (d) to (f) on such conditions as it may specify:
Provided further that the acceptance by a banking Company in the ordinary
course of its business of deposits of money from the public repayable on
demand or otherwise and withdrawable by Cheque, draft, order or otherwise, or
the placing of monies on deposit by a banking Company with another banking
Company on such conditions as the Board may prescribe, shall not be deemed

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to be a borrowing of monies or, as the case may be, a making of loans by a

banking Company within the meaning of this Section.”
26. Accordingly, on perusal of provision statutorily approval of the
Companies Act, 2013, it is crystal clear that:
(a) Disciplinary Authority in the Petitioner is only Board of PLL under
Section 178(2) of the Company act 2013 the Petitioner being Senior
Management Level Officer holding the post of “President” as board of
PLL is the appointing/removal authority.
(b) As per provision in Section 6(1) of the Company Act 2013, the
provision of Company act 2013, shall have effect not withstanding
anything to the contrary contained in the Memorandum, Article of the
Company or any agreement executed by it in any Resolution passed by
Company in general meeting or by the Board of Directors, whether the
same be registered, executed or passed, as the case may be before or after
the commencement of this act.
(c) As per provision in Section 6(b) of the Company Act 2013, any
provision contained in the Memorandum, article, agreement or
Resolution shall, to the extent to which it is repugnant to the provisions of
this act, become or to be void, as the case may be.
(d) As per provision under Section 179(1) of the Company Act 2103, the
Board of Directors of the Company shall exercise power as per the
provision in this Act and not inconsistent therewith. The powers of the
Board of Directors are specified under Section 179(3) of the Act.
(e) Board of Directors can delegate powers mentioned in sub-clause (d) to
(f) of Section 179(3) only. It is obvious that Board of Directors is not
empowered to delegate disciplinary power to anybody.
27. Counsel for the Petitioner further argued that the reliance placed by
the Respondents on the provisions of Section 4.4.3 & 4.4.3.6 of H.R.
policies-Section 4-standards of conducts & performance is totally wrong,
bad in law and utter violation of provision of Section 6, 178 (2), 179(2) &
179(3) of the Companies Act 2013. The Board of PLL has no power to
delegate its disciplinary powers to anybody including MD & CEO under
Section 179(3) of the Companies Act, 2013. Such power has never been
delegated by the Board of PLL to MD & CEO i.e. Respondent No.6. The
H.R. Policies-Section 4-Standards of Conducts & Performance (SA/1) are
outdated, inconsistent and at variance with the provision under Section
178(2), 179(1) & 179(3) of the Companies Act, 2013. Thus, the approval of
Charge-sheet by MD & CEO i.e. Respondent No.6 is illegal & bad in law as
he has no authority of disciplinary action against the Petitioner under
provision of the Companies Act, 2013. Therefore, approval of Charge-sheet
by MD & CEO is null & void and non-est in the eyes of law.

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January 2021 Rajeev Agarwal v. Union of India 165
(Del.) (Suresh Kait, J.)
28. In the case of Sahani Silk Mills (P) Ltd., and others v. ESI
Corporation, AIR 1994 SCW 3832, it is held as below:
“6. By now it is almost settled that the legislature can permit any Statutory
Authority to delegate its power to any other authority, of course, after the policy
has been indicated in the Statute itself within the framework of which such
delegatee is to exercise the power. The real problem or the controversy arises
when there is a sub-delegation. It is said that when Parliament has specifically
appointed authority to discharge a function, it cannot be readily presumed that it
had intended that its delegate should be free to empower another person or body
to act in its place.”
29. Reliance is also placed on Government of Andhra Pradesh v. M.A.
Majeed and another, 2006 (3) LLN 587 (AP) : AIR 2006 (2) Kar. 443 and
submitted that a Statutory Authority is required to do something in a
particular manner, the same must be done in that manner only. The state and
other authorities, while acting under the Statute, are the creatures of the
Statue and they must act within the four corners of the Statute.
30. In the case of A.K. Kraipak v. Union of India, 1969 (2) SCC 262, the
Supreme Court has held as under:
“The concept of natural justice has undergone a great deal of change in recent
years. What particular rule of natural justice should apply to a given case must
depend to a great extent on the facts and circumstances of that case, the
Framework of the law under, which the Inquiry is held and the constitution of the
Tribunal or the body of persons appointed for that purpose. Whenever a
Complaint is made before a Court that some Principle of Natural Justice had
been contravened, the Court has to decide whether the observance of that rule
was necessary for a just decision on the facts of that case. The rule that enquiries
must be held in good faith and without bias, and not arbitrarily or unreasonably,
is now included among the Principles of Natural Justice.”
31. Learned Counsel for the Petitioner corroborated from the submissions
made under Para 3(i) to (xii) mentioned above and the Judgments mentioned
above that the Charge-sheet, dated 21.8.2018, which does not have the
approval of Disciplinary Authority (Board of PLL) is without jurisdiction,
illegal, bad in law and non-est and deserves to be quashed. Moreover, the
constitution of committee does not have the approval of Board of PLL being
the Disciplinary Authority and therefore, it is illegal and without jurisdiction.
32. To strengthen his argument, Counsel for the Petitioner has relied
upon the case of Union of India and others v. Mohd Nasseem Siddiqui,
ILLJ 2005 (931) MP, of Madhya Pradesh High Court, which is held as
under:
“7. One of the fundamental Principles of Natural Justice is that no man shall be a
Judge in his own cause. This principle consists of seven well recognised facets:
(i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator
shall not be the prosecutor, (iii) The Complainant shall not be an adjudicator,

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166 LABOUR LAW NOTES 2021 (1) LLN

(iv) A Witness cannot be the Adjudicator, (v) The Adjudicator must not import
his personal knowledge of the facts of the case while inquiring into charges,
(vi) The Adjudicator shall not decide on the dictates of his Superiors or others,
(vii) The Adjudicator shall decide the issue with reference to material on record
and not reference to extraneous material or on extraneous considerations. If any
one of these Fundamental rules is breached, the will be vitiated.”
33. In State of U.P. and others v. Saroj Kumar Sinha, 2010 (1) LLN 527
(SC) : AIR 2010 SC 3131, the Hon’ble Supreme Court of India in Paragraph
26 & 28 has held as under:
“26. Inquiry Officer acting in a quasi judicial authority is in the position of an
independent adjudicator. He is not supposed to be a representative of the
Department/Disciplinary Authority/Government. His function is to examine the
evidence presented by the Department, even in the absence of the delinquent
official to see as to whether the unrebutted evidence is sufficient to hold that the
charges are proved.”
“28. When a Department Inquiry is conducted against the Government servant it
cannot be treated as a casual exercise. The Inquiry proceedings also cannot be
conducted with a closed mind. The Inquiry Officer has to be wholly unbiased.
The rules of natural justice are required to be observed to ensure not only that
justice is done but is manifestly seen to be done.”
34. In the case of E. Busali v. Commandant, 1994 FLR (68) Kar. 993, it
is held that “Inquiry conducted by a subordinate’s Officer of the
Complainant would be vitiated on the account of bias. The Court held that in
their view the learned Single Judge ought to have accepted the contention of
the Writ Petitioner that the Inquiry Officer, being a Subordinate Officer to
the Complainant, the entire proceedings relating to were vitiated.”
35. The Hon’ble Supreme Court in the case of State of Punjab v. V.K.
Khanna and others, AIR 2001 SC 343, has held that when administrative
actions are coloured with bias and malice, the Courts are within their
jurisdiction to quash the Charge-sheets. The Court has also held that the
existence of elements of bias depends on the facts and circumstance of each
case and can be judged from the surrounding circumstances of the case. The
Court has held as under:
“8. The test therefore, is as to whether there is a mere apprehension of bias or
there is a real danger of bias and it is on this score that the surrounding
circumstances must and ought to be collated and necessary conclusion drawn
therefrom. In the event, however, the conclusion is otherwise that there is
existing a real danger of bias administrative action cannot be sustained: If on the
other hand allegations pertain to rather fanciful apprehension in administrative
action, question of declaring them to be unsustainable on the basis therefor
would not arise.”
36. It is submitted that appointment of Shri V.K. Mishra, who is a
subordinate of the Complainant (Respondent No.6), as member of committee
is in utter violation of Principles of Natural Justice and Court Judgments
mentioned above and vitiates the Disciplinary proceedings. From the

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January 2021 Rajeev Agarwal v. Union of India 167
(Del.) (Suresh Kait, J.)
submissions mentioned above, it is substantiated that the committee has been
constituted arbitrarily, unreasonably and colours with bias and, therefore,
deserves to be quashed.
37. On the issue of findings of Committee, it is submitted by Counsel for
the Petitioner that the Petitioner has written several letters through e-Mail
informing Respondents that his Disciplinary Authority is Board of PLL and
Charge-sheet issued to him without approval of Board of PLL is wrong and
illegal. However, all the Representations of the Petitioner were ignored by
the Respondents. Petitioner was, therefore, compelled not to represent on the
findings of the committee.
38. As regards Charge No.1 is concerned, it is submitted that a
confidential Letter, dated 1.5.2018 (P/2), written by the Petitioner to Shri
K.D. Tripathi, Secretary, MOPNG with a copy to CVC and Director CBI,
wherein, he made false allegation. Thus, the allegation against the Petitioner
is highly sensitive and confidential information is disclosed into public
domain by writing that letter, which amounts to misconduct under H.R.
Policy of PLL.
39. The findings of the Inquiry Committee (EC) as recorded under para
5.6, 5.7 & 8 of the EC Report, dated 18.12.2018 (P/9) are reproduced below;
“5.6. In the opinion of EC, all these authorities (except Secretary, MOPNG and
Chairman PLL) are public functionaries of the country and any communication
addressed to them amounts to putting the communication into public domain.”
“5.7. Disclosure of the confidential information relating to the Tender process as
contained in the Letter, dated 1.5.2018 clearly amount to “disclosing into public
domain” and hence violation of secrecy and confidentiality of the said
information relating to tender processes.”
“5.8. The said acts/omissions clearly amount to misconduct under Clauses
4.3.1(o) & 4.3.1(m) of General Standards of Conduct and Performance.”
40. The conclusion arrived at by the EC under Para 5.6, 5.7 & 8 of its
reports is not based on evidence adduced during the Inquiry but on
conjecture. The opening words of Para 5.6 viz. “In the opinion of EC, all
these authorities....” itself that conclusion is arrived at on conjecture by
importing personal knowledge by the Inquiry Committee and is tainted with
bias. Writing confidential letter to CVC and CBI Director cannot be said to
be disclosing information under public domain. If information is disclosed to
the press, Newspapers, electronic media etc. for information of public at
large then it would be in public domain. Inquiry Committee has failed to
establish if any prejudice is caused or if any harm is done to PLL by writing
confidential Letter, dated 1.5.2018 by the Petitioner to CVC or CBI Director.
In the contents of the Letter, dated 1.5.2018, there is nothing like “highly
confidential and sensitive” as termed by Respondent No.6 deliberately. As
such Charge No.1 is wrongly proved against the Petitioner.

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41. As far as Charge No.2 is concerned, it is submitted that a Complaint

Letter, dated 2.7.2018 (P/3) and its enclosure approval Note, dated 1.6.2018
(P/21) written by the Petitioner to Dr. M.M. Kutty, Secretary, Ministry of
Petroleum and Natural Gas and copy sent to other various Government
Authorities. Accordingly, the allegation against the Petitioner is that the
approval note neither belongs to the Department of the Petitioner nor its
possession thereof belongs to the work domain of Petitioner and that
Petitioner unauthorisedly got access to the approval note and communicated
to various Public Authorities and thus misconduct. The findings of the
Inquiry committee (EC) report as recorded under Paragraph 15 of the EC
Report, dated 18.12.2018 are reproduced below:
“15. EC also finds that sharing of approval note amounts to unauthorised
communication/disclosure of official document/information relating to the
Company’s business to unrelated persons and wilful damage to the property of
the Company and the same are misconduct under Clause 4.3.1(m) & (o) of the
H.R. Policy on Standards of Conduct and Performance.”
42. The Petitioner being a “Whistle Blower”, blew a whistle by lodging a
Compliant, dated 2.7.2018 under “Public Interest Disclosure and Protection
of Informs” Resolution 2004 exposing corruption of Respondent No.6 by
misusing Office. The Petitioner enclosed Approval Note, dated 1.6.2018,
with Compliant, dated 2.7.2018, as documentary evidence in support of his
allegation against Respondent No.6. From the Complaint it is clear that
Respondent No.6 awarded a work order of `55.00 lakh to a already
disqualified firm M/s. Pine Tree Pictures (P) Ltd., on nomination basis in
utter violation of Company’s laid down procedure. The director of M/s. Pine
Tree Picture Pvt. Ltd. Shri Gautam Chaturvedi, is a family friend of
Respondent No.6. Respondent No.6 approved 75% advance payment
without any Bank Guarantee in gross violations of rules and regulations.
43. As regards Charge No.3 is concerned, it is as per Clause 17.4.2 of HR
policies that the Petitioner is entitled for one Club Membership. Accordingly
Petitioner acquired membership of Chelmsford Club in Delhi. The charge
against the Petitioner is that he is entitled for Corporate Membership Club
and that he acquired individual membership of the Chelmsford club by
misrepresenting the facts and thus misconducted. The findings of the Inquiry
committee (EC) as recorded under Paragraph 1, 6 & 7 are reproduced below:
“1. A perusal of Club Membership Policy (P/1) shows that the Management
provides one Club Membership to V.P. and above.”
“6. Therefore, in the opinion of EC, the club policy of the Company only refers
to the Corporate Membership, which is in favour of the Company and any
eligible Employee is required to be nominated by the Company under the said
membership.”
“7. It is clear that CSE was entitled only to a Corporate Club Membership and
he fraudulently obtained an individual and permanent membership in his own

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January 2021 Rajeev Agarwal v. Union of India 169
(Del.) (Suresh Kait, J.)
name, which is not transferable under the Rules of Chelmsford Club, as it is
evident from their letter (Ex. MW-1/5).”
44. Learned Counsel for the Petitioner submits that as per Clause 17.4.2
of H.R. policies, the Company shall provide one club membership to V.P.
and above as admitted by EC under Paragraph 1 of its report. It does not
mention Corporate Club Membership. The conclusion is arrived at by the
EC, under Paragraph 6 mentioned above, by importing personal knowledge
and is tainted with bias. It is as well in utter violation of provision under
Clause 17.4.2 of H.R. policies.
45. It is pertinent to mention here that Shri A.K. Chopra, Senior Vice
President (L & D) is also having same type of membership of Chelmsford
club as the Petitioner, as would be evident from PLL’s Letter No.PLL/HR-
CM-CC/2018-19/002, dated 4th July 2018, copy annexed as P-24). Although
Petitioner has been Charge-sheeted on 21.8.2018 for allegedly having wrong
membership of the club but no Charge-sheet has been issued to Shri A.K.
Chopra along with Petitioner. It is thus obvious that Respondent No.6 is not
impartial and is biased & vindictive against the Petitioner.
46. On the other hand, Mr. Sudhir Nandrajog, Senior Advocate appearing
for Respondent Nos.4 to 6 submitted that the Petitioner did not attend the
committee proceedings inspite a number of chance given to him and,
therefore, ex parte was concluded. In this connection, Petitioner submits as
under:
(i) In e-Mail, dated 10.10.2018 (P/28) Petitioner informed Chairman PLL
and others that Inquiry Committee has been constituted without approval
of Chairman/Board of Directors in violation of Company act 2013 and
that it would be illogical for the Petitioner to attend the Inquiry
committee;
(ii) In e-Mail, dated 12.10.2018 (P-29) Petitioner informed Respondent
No.6 and others if approval of Board of Directors was obtained for setting
up of the Inquiry Committee. If so, a copy of the approval was sought by
the Petitioner from Respondent No.6, which was not supplied;
(iii) In e-Mail, dated 29.10.2018 (P/30) Petitioner informed that
Respondent No.6 has not furnished copy Board of Director’s approval for
constituting the Inquiry Committee. Petitioner also informed that it would
be illogical for Petitioner to attend the unconstitutional Inquiry
committee; and
(iv) In e-Mail, dated 13.11.2018 (P/31) Petitioner informed Respondent
No.6 that appointing authority of the Petitioner is Board of Directors
through NRC (Nomination & Remuneration Committee) and that
approval of board had not been obtained before proceeding. On bogus
Charge-sheet and that in the absence of approval of board, Charge-sheet

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170 LABOUR LAW NOTES 2021 (1) LLN

cannot be issued to the Petitioner. Petitioner further informed that it

would be illogical for Petitioner to attend unconstitutional Inquiry
committee.
47. Accordingly, the Petitioner has attempted to establish that the entire
Disciplinary proceedings are unconstitutional, void, wrong and against the
Principles of Natural Justice and in contravention of provision of Article 311
of the constitution of India. As such findings of the Committee are wrong,
ultra vires and not impartial as the Disciplinary proceedings are not held in
good faith and without bias.
48. Learned Senior Counsel submits that the present Petition has been
filed to challenge the Inquiry Report of the Inquiry Committee, dated
18.12.2018 pursuant to a Charge-sheet, dated 21.8.2018. The Writ had been
filed at the stage when the Inquiry Report, dated 18.12.2018 was sent to the
Petitioner vide Letter, dated 24.12.2018 and one weeks’ time was granted to
him to make the Representation. Therefore, at his request, vide Letter, dated
4.1.2019 he was granted further extension to submit his Representation
against the report by 11.1.2019, however, instead of making the
Representation, the Petitioner filed the present Writ Petition challenging the
Inquiry report as well as Charge-sheet.
49. Learned Counsel further submits that main challenge of the Petitioner
is that; the Charge-sheet has been issued by an incompetent Authority as it
has been issued by the Senior Manager HR; under Section 178 of the
Companies Act, 2013 the Appointing Authority of the Petitioner is the Board
of Directors; since the approval of the Board of Directors was not obtained
the Charge-sheet is liable to be quashed and finding of guilt by Inquiry
committee on the allegedly incompetent charges is violative of Principles of
Natural Justices.
50. Learned Senior Advocate submits that the Petitioner was issued a
Charge-sheet, dated 21.8.2018. It was sent through his Reporting Officer i.e.
Director (Technical) and was communicated by Senior Manager HR. It was
duly approved by the MD & CEO of PLL as stated below. The initiation of
Disciplinary proceedings is in accordance with the applicable rules of the
Company, including delegation of authority Manual, HR Policy amended
from time to time, and is also not in variance with the Companies Act, 2013
and rules thereof. As per Clause 4.14 of the DOA Manual, powers pertaining
to HR vests with the MD & CEO in consultation with the Head of the HR
Department. Clause 4.14 of DOA Manuals is reproduced as under:
“4.14. Powers pertaining to HR will be exercised by CEO & MD in consultation
with the head of the HR Department.”
51. As per Clause 4.4.3.6 of the HR Policy the Competent Authority
(CA) towards Disciplinary Action and purpose of punishment is CEO & MD

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January 2021 Rajeev Agarwal v. Union of India 171
(Del.) (Suresh Kait, J.)
for the Officers and directors concerned for the operational and supporting
staff.” Relevant Clause 4.4.3.6 is reproduced as under:
“4.4.3.6 The Competent Authority (CA) towards Disciplinary action and
purpose of punishment is CEO & MD for Officers and directors concerned for
the operational and supporting staff...”
52. Section 4 of the Standard of Conducts and Performance of the HR
Policy (PLL), which is duly approved by the Board of Directors and
applicable on the Employees including the Petitioner clearly lays down the
process to be followed by HR Department in consultation with the functional
head and the MD & CEO for any action including Disciplinary proceedings
against a delinquent Employee and powers of the MD & CEO (Respondent
No.6). The relevant clauses are extracted below:
“4.4.3 If any act of misconduct is proved against an Employee any of the
following punishments, commensurate with the offence can be inflicted.
• Fine.
• Warning or censure.
• Stoppage not exceeding four days
• Reduction to a lower grade or lower stage in the grade
• Discharge or dismissal
In the case of misconduct for which any of the above penalties other than the fine
is proposed to be imposed, a Charge-sheet clearly setting out the allegations and
charges, will be given to the Employee concerned. He will within 7 days from
the date of the receipt of said communication furnish his written explanation. An
Enquiry will be held by an Enquiry Committee nominated by the Management of
the Company into the Competent Authority to drop the alleged charges arid the
facts so communicated to the Employee in writing. During the Enquiry the
Employee concerned will be afforded reasonable opportunity of explaining and
defending himself. The Enquiry Committee will establish the truth or otherwise
of the charges and present its findings to the Competent Authority, which after
due consideration of all relevant facts, will decide the action to be taken. In the
event it is decided by the Competent Authority that Employee is innocent, this
fact will be so communicated to him in writing. If, however, the Competent
Authority finds the Employee to be guilty of some or all the charges and
therefore decides to inflict punishment on him, a Show Cause Notice will be
issued to the Employee concerned, informing the Employee as to show cause
within 7 days from the date of receipt of the communication by him as to why
the proposed penalty should not be imposed on him. The reply to the Show
Cause Notice will then be considered by the Competent Authority and final
orders communicated to the Employee.”
53. Hence, it is evident that the MD and CEO is the Competent Authority
and has full power for initiation of Disciplinary action against any Officer of
PLL.
54. Relevant extracts of Section 178 of the Companies Act, 2013 are as
follows:

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“178. Nomination and Remuneration committee and stakeholders Relationship

committee.— (1) The Board of Directors of every listed Company and such other
class or classes of Companies, as may be prescribed shall constitute the
Nomination and remuneration committee consisting of three or more non-
executive directors out of which not less than one-half shall be independent
directors:
Provided that the chairperson of the Company (whether executive or non-
executive) may be appointed as a member of the Nomination and remuneration
committee but shall not chair such committee....”
(2) The nomination and remuneration committee shall identify persons, who are
qualified to become directors and who may be appointed in Senior Management
in accordance with the criteria laid down, recommend to the board their
appointment and removal and shall carry out evaluation of every director’s
performance....”
55. It is thus clear that in view of Section 178, if any penalty of removal
is imposed then the procedure prescribed under Section 178 of the
Companies Act, 2013 would be required to be followed. However, for minor
and other penalties not envisaged under Companies Act 2013, the MD and
CEO would be the Competent Authority. Hence, if any punishment is
awarded other than 4.4.3 (e) & (f) of Standards of Conducts and
Performance of the HR Policy, MD & CEO is the Competent Authority. If
the punishment falls under 4.4.3 (e) & (f) of Standards of Conducts and
Performance of the HR Policy, then the MD & CEO will forward the case to
the NRC under Section 178 of the Companies Act, 2013, since any removal
or demotion of Senior Management personnel category should be
recommended to the board by the NRC. However, Section 178 has no role to
play with respect to the initiation of the Disciplinary proceedings. It will
come into picture only at the time of imposition of penalty. The MD & CEO
is clearly empowered and authorized under the delegation of authority as
well as the Standards of Conducts and Performance of the HR Policy (PLL)
to initiate the Disciplinary proceedings including the issuance of the Charge-
sheet and the appointment of the Inquiry Committee. The original file
showing that the MD & CEO has approved the issuance of the Charge-sheet
has been perused by this Court during the hearing on 2.7.2019.
56. I have heard learned Counsel for the parties at length and perused the
material available on record.
57. Regarding maintainability of the Petition is concerned, Respondent
Company is ‘Public Limited Company’ as per Section “4-Memorandum-(1)”
of Companies Act, 2003. The Company was formed as a joint venture
Company by Government of India in 1998 in pursuance of Cabinet decision
on 4.7.1997. Thus, it is an instrumentality of Government because it comes
under purview of “other authorities” of “State” under Article 12 of the
Constitution of India.

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January 2021 Rajeev Agarwal v. Union of India 173
(Del.) (Suresh Kait, J.)
58. In addition, deep and pervasive control is exercised by Government
over administrative, financial and functional activities of the Respondent-
Company. Moreover, there is significant financial control by 50%
shareholding by four Central Government PSUs mentioned above and it falls
within the purview of CVC. Moreover, in case of Essar Steel Ltd (Supra),
the directive of Central Government to Company under their Letter, dated
6.3.2007 was upheld by the Supreme Court of India on 19.4.2016. In case of
Petronet LNG Ltd., (Supra), it is held by this Court that there is crucial
Public interest element in its functioning and 50% of `1,200 crores
shareholding is controlled by Public Sector undertaking, which are directly
answerable to Central Government and Parliament. Thus, in my considered
opinion, the Respondent-Company is ‘State’ under Article 12 of the
Constitution of India. Accordingly, the present Writ Petition is maintainable.
59. It is admitted fact that the Petitioner did not attend the committee
proceedings inspite a number of chance given to him and, therefore,
proceedings were concluded ex parte. The case of the Petitioner is that the
entire Disciplinary proceedings are unconstitutional, void, wrong and against
the Principles of Natural Justice and in contravention of provision of Article
311 of the Constitution of India.
60. The challenge before this Court is the Inquiry report of the Inquiry
Committee, dated 18.12.2018 pursuant to a Charge-sheet, dated 21.8.2018.
The present Petition has been filed at the stage when the Inquiry Report,
dated 18.12.2018 was sent to the Petitioner vide Letter, dated 24.12.2018
and one weeks’ time was granted to him to make the Representation. It is not
in dispute that, at his request, vide Letter, dated 4.1.2019 he was granted
further time to submit his Representation by 11.1.2019 against the
Representation. However, instead of making the Representation, the
Petitioner filed the present Writ Petition challenging the Inquiry Report as
well as Charge-sheet.
61. Further case of the Petitioner is that the Charge-sheet has been issued
by an incompetent Authority as it has been issued by the Senior Manager
HR; under Section 178 of the Companies Act, 2013 the appointing authority
of the Petitioner is the Board of Directors. Since the approval of the Board of
Directors was not obtained, the Charge-sheet is liable to be quashed and
finding of guilt by Inquiry committee on the allegedly incompetent charges
is violative of Principles of Natural Justices.
62. The Charge-sheet, dated 21.8.2018 was issued to the Petitioner and
the same was sent through his Reporting Officer i.e. Director (Technical)
and was communicated by Senior Manager HR. It was duly approved by the
MD & CEO of PLL. The initiation of Disciplinary proceedings is in
accordance with the applicable rules of the Company, including delegation
of authority Manual, HR Policy amended from time to time and is also not in
variance with the Companies Act 2013 and rules thereof.

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174 LABOUR LAW NOTES 2021 (1) LLN

63. As per Clause 4.14 of the DOA Manual, the powers pertaining to HR
vests with the MD & CEO in consultation with the Head of the HR
Department. The said powers pertaining to HR will be exercised by CEO &
MD in consultation with the head of the HR Department.
64. As per Clause 4.4.3.6 of the HR Policy, the Competent Authority
(CA) towards Disciplinary action and purpose of punishment is CEO & MD
for the Officers and directors concerned for the operational and supporting
staff.
65. Section 4 of the Standard of Conducts and Performance of the HR
Policy (PLL), which is duly approved by the Board of Directors and
applicable on the employees including the Petitioner clearly lays down the
process to be followed by HR Department in consultation with the functional
head and the MD & CEO for any action including Disciplinary proceedings
against a delinquent Employee and powers of the MD & CEO (Respondent
No.6). Thus, MD and CEO is the Competent Authority and has full power
for initiation of Disciplinary action against any Officer of PLL.
66. As per Section 178 of the Companies Act, 2013, if any penalty of
removal is imposed then the procedure prescribed under Section 178 would
be required to be followed. However, for minor and other penalties not
envisaged under Companies Act 2013, the MD and CEO would be the
Competent Authority. Thus if any punishment is awarded other than 4.4.3
(e) & (f) of Standards of Conducts and Performance of the HR Policy, MD
& CEO is the Competent Authority. If the punishment falls under 4.4.3 (e)&
(f), then the MD & CEO will forward the case to the NRC under Section 178
of the Companies Act, 2013, since any removal or demotion of Senior
Management personnel category should be recommended to the board by the
NRC. However, Section 178 has no role to play with respect to the initiation
of the Disciplinary proceedings. It will come into picture only at the time of
imposition of penalty. Thus, the MD & CEO is clearly empowered and
authorized under the delegation of authority as well as the Standards of
Conducts and Performance of the HR Policy (PLL) to initiate the
Disciplinary proceedings including the issuance of the Charge-sheet and the
appointment of the Inquiry Committee.
67. In addition to above, it is pertinent to mention here that during the
hearing of the present Petition, on 2.7.2019, this Court has perused the
original file whereby it is established that the MD & CEO has approved the
issuance of the Charge-sheet. Thus, the arguments of the Counsel for the
Petitioner and the ratio of the Judgments relied upon, has no help in the facts
and circumstances of the present case.
68. However, before parting with this Judgment, it is the duty of the
Court that if any information regarding corrupt practices of any official
including Respondent No.6 is on record, then this Court cannot lay hand.

Labour Law Notes / January-2021

January 2021 Executive Engineer, Division-CPWD v. Bijender 175
(Del.) (Najmi Waziri, J.)
69. Accordingly, Chief Vigilance Commissioner is directed to inquire
into the allegations made by the Petitioner against Respondent No.6,
mentioned in Para 7 above, and take action as per law.
70. Since the Petitioner has challenged the Charge-sheet and Inquiry
proceedings and not filed response to the findings of Inquiry Authority,
therefore, I hereby give liberty to file response within three weeks from the
receipt of this order. On receipt of reply, the Respondent is directed to
consider the same and pass order as per law, dealing with the fact that Sh.
A.K. Chopra, Senior Vice President is also having same type of membership
of Chelmsford Club as the Petitioner has, but no action has been taken
against him.
71. In view of above directions, the Writ Petition is disposed of.
72. Registry is directed to send copy of this Judgment to Chief Vigilance
Commissioner for compliance.
C.M.A. Nos.486/2019 & 14962/2019:
73. In view of the Order passed in the Writ Petition, these applications
have been rendered infructuous and are, accordingly, disposed of.
  

2021 (1) LLN 175 (Del.)

IN THE HIGH COURT OF DELHI
Najmi Waziri, J.
W.P.(C) No.4749 of 2007
28.2.2020
Executive Engineer, Division-CPWD .....Petitioner
Vs.
Bijender and others .....Respondents
SERVICE LAW — Reinstatement with Back Wages — Justifiability —
Respondent-Workman raised Industrial Dispute over his Termination
— CGIT awarded Reinstatement with 40% Back Wages — On
challenge, held, facts of instant case identical to facts in PWD v. Satya
Pal, 2006 (132) DLT 571 (DB) — No substance in contention of
Appellant that he should not be saddled with liability for period, when
Respondent was out of service — Respondent equally cannot be
expected to suffer for delay in disposal of his claim by Tribunal — No
case of Appellant that Respondent caused delay in disposal of case by
Tribunal — In view of law laid down in Satya Pal, there is no reason to

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176 LABOUR LAW NOTES 2021 (1) LLN

interfere with impugned Order — Writ Petition being without merit

dismissed. (Paras 4 to 6)
CASES REFERRED
PWD v. Satya Pal, 2006 (132) DLT 571 (DB).......................................................................4, 5
Anil Panwar & Tanishq Panwar, Advocates for Petitioner.
Anuj Aggarwal & Tenzing Thinlay Lepcha, Advocates for Respondents.
Finding — W.P. dismissed.
JUDGMENT
1. This Petition impugns the Award, dated 31.1.2007 passed by Central
Government Industrial Tribunal cum Labour Court No.1. The Workman
were supposed to reinstate with 40% Back Wages. The Petitioner has
crystallized the issue to be determined in this case in the rejoinder as under:
“1. That the short question of law involved in the present Petition is whether the
1st Respondent working as a contractor for supply of labour (sewerman) when
opts to perform the Contract by working himself as a sewerman can be said to be
a contractual Workman. That the Judgment of this Hon’ble Court in case of
PWD v. Satya Pal, 2006 (132) DLT 571 (DB), holding such Contractor as a
Workman has been stayed by the Hon’ble Supreme Court in CC No.2082/2007
vide Order, dated 8.3.2007 annexed as Annexure: P-10 to the Petition paper book
and the matter is pending decision by the Hon’ble Supreme Court. Hence, this
Hon’ble Court may be pleased to adjourn the matter sin-die till the final decision
by the Hon’ble Supreme Court.”
2. The Division Bench of this Court has held that the work order
Employees, daily wagers and direct Employees would get benefit of
regularisation of the principal Employer i.e., the Petitioner. The aforesaid
SLP preferred by the Petitioner was dismissed by the Supreme Court on
10.11.2009 by the following order:
“Having heard Mrs. Indira Jai Singh, learned Additional Solicitor General,
appearing for the Petitioner and Mr. Varun Prasad, learned Counsel appearing
for the Respondent-Employee and after going through the impugned Orders, we
find that the Three Courts below concurrently found on fact that the Respondent
having completed 240 days is entitled for reinstatement. That being the position
and nothing adverse could be shown from the orders of the High Court, we are
not inclined to interfere with the impugned Order, exercising our discretionary
power under Article 136 of the Constitution and this Special Leave Petition
accordingly stands dismissed.
3. Since the issue has already been found in favour of the Respondent-
Workmen, the sole ground for the Petitioner to challenge of the impugned
Order is dissipates.
4. The facts of the present case are stated to be identical to the facts in
PWD v. Satya Pal, 2006 (132) DLT 571 (DB), in which the Division Bench
of this Court held as under:

Labour Law Notes / January-2021

January 2021 Executive Engineer, Division-CPWD v. Bijender 177
(Del.) (Najmi Waziri, J.)
“9. It is apparent from the above that the device of issuing work orders was to
satisfy the letter of the law as contained in Section 2(oo)(bb) but in was in fact it
was nothing but ‘an employment on the continuous basis. The very purpose for
which Section 2(oo)(bb) was introduced was to avoid saddling an Employer with
the liability under Section 25-F where a Worker had been engaged for a very
short period of say, two or three months. It was not meant to be invoked in a
situation where the Worker is in continuous employment, as in this case, for over
three years. If one were to interpret Sections 2(oo)(bb) in the manner that the
Appellant suggests, it would permit the law to be misused to avoid a statutory
liability. It must be kept in mind that the ID Act is intended to protect a
Workman whose services have been continuously engaged for a considerable
period of time. It is in this background that the provision of Section 2(oo)(bb)
should be interpreted.
13. It is thus contended by the learned Counsel for the Appellant that the
Tribunal was not justified in awarding Back Wages to the extent of 40%. In
support of this submission, reliance is placed again on the Judgment of the
Hon’ble Supreme Court in Rudhan Singh’s case (supra) and of this Court in
Management of Asiatic Air Conditioning & Refrigeration Pvt. Ltd. v. Presiding
Officer, Labour Court-X and anr., 2004 (114) DLT 358. As far as the Rudhan
Singh’s case (supra) is concerned, as already noticed, the Worker there had
worked for less than a year and that too in broken periods, and in those
circumstances it was held that the Worker would not be entitled to any Back
Wages. As far as the Judgment of this Court in the Management of Asiatic Air
Conditioning & Refrigeration Pvt. Ltd’s case (supra) is concerned, the decision
not to award Back Wages turned on the fact that the organization was not so
large that it could absorb the cost of paying the Worker 15 years’ Back Wages
without having taken any work from him. It was nobody’s case that the
Appellant herein is not a large organization and cannot absorb the liability of
having to pay the Respondent his Back Wages to the extent of 40% as awarded
by the Tribunal.
14. Finally it is submitted that the proceedings were pending before the Tribunal
since 1994 for over ten years and that the Appellant should not be saddled with
the liability for this period when the Respondent was out of service. We are
unable to accept this submission. The Respondent equally cannot be expected to
be made to suffer for the delay in the disposal of his claim by the Tribunal which
is on account of a systemic failure, not attributable to the Respondent. It is not
the Appellant’s case that the Respondent caused the delay in the disposal of the
case by the Tribunal. We do not find any infirmity in the award by the Tribunal
of the 40% Back Wages upon reinstatement of the Respondent.”
5. In view of the above, PWD v. Satya Pal, 2006 (132) DLT 571 (DB),
and Bijender being identically placed, Bijender too would get the same
benefit. There is no reason to interfere with the impugned Order.
6. The Petition is without merit and the same is hereby dismissed.
  

Labour Law Notes / January-2021

178 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 178 (Guj.)

IN THE HIGH COURT OF GUJARAT
V.M. Pancholi, J.
R/Spl.C.Appli. No.5165 of 2020
5.3.2020
Subhash Bajrangsingh Chaudhary …..Petitioner
Vs.
J.K. Laxmi Cement Ltd. …..Respondent
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Section 33-C(2) —
CODE OF CRIMINAL PROCEDURE, 1973 (2 of 1974), Sections
195(1)(b) & 340 — Representative Application — Tampering of Court
Records — Petitioner, General Secretary of Labour Union, filed
Application under Section 33-C(2) — Application, though initially signed
only by Petitioner, was subsequently signed by three Workmen — After
due inquiry, Registrar was directed to file Complaint against Petitioner
for tampering Court records — Challenge thereto — Held, said Order
already implemented and Criminal Compliant filed — No error in
impugned Order — Petitioner at liberty to seek quashing of Complaint
before appropriate Court — Writ Petition dismissed. (Paras 14, 15 & 16)
CASES REFERRED
Sharad Pawar v. Jagmohan Dalmiya, 2010 (15) SCC 290.......................................................11
K.R. Mishra, Advocate for appearing parties.
Finding — W.P. dismissed.
JUDGMENT
1. Draft amendment is allowed. To be carried out forthwith.
2. This Petition is filed under Articles 226 & 227 of the Constitution of
India, in which, the Petitioner has prayed for following reliefs,—
(a) to issue Writ of Certiorari or any other appropriate Writ or Order or
direction in the nature of certiorari quashing and setting aside the order
qua direction of filing Complaint before the Court of having competent
jurisdiction against the Petitioner for committing the offences under
Sections 463, 464, 465 & 466 of the Indian Penal Code, 1860 under
Section 195(1)(b) read with Section 340 of the Code of Criminal
Procedure, 1973, passed by learned Labour Court at Ahmedabad in
Recovery Application No.1989 of 1998 on 13.2.2020;
(b) to issue Writ of Certiorari or any other appropriate Writ or Order or
direction in the nature of certiorari calling the records and proceedings of

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January 2021 Subhash Bajrangsingh Chaudhary v. J.K. Laxmi Cement Ltd. 179
(Guj.) (V.M. Pancholi, J.)
Recovery Application No.1989 of 1998 to verify the record and pass an
appropriate order;
(c) to stay the operation, execution and implementation of the order qua
direction of filing written Complaint before the Court of having
competent jurisdiction against the Petitioner for committing the offences
under Sections 463, 464, 465 & 466 of Indian Penal Code, 1860 under
Section 195(1)(b) read with Section 340 of Code of Criminal Procedure,
1973, passed by learned Labour Court at Ahmadabad in Recovery
Application No.1989 of 1998 on 13.2.2020, pending admission, hearing
and final disposal of the present Petition;
(ca) to stay further proceeding if Criminal Complaint is filed before
Competent Court pending admission, hearing and final disposal of the
present Petition;
(d) … … …
3. Heard learned advocate, Mr. K.R. Mishra for the Petitioner.
4. The factual matrix of the present case is as under,
4.1. It is the case of the Petitioner that the Petitioner is the General
Secretary of a registered Trade Union viz., Rashtriya Labour Union, whose
registration was in force at the relevant point of time, however thereafter, the
registration has been cancelled and the said order has been challenged before
this Court by filing Writ Petition being Special Civil Application No.2588 of
2019, which is pending for hearing.
4.2. It is stated that the Petitioner with the instruction and authority of the
concerned Workmen, whose names are included in the Annexure produced
with recovery application, filed Recovery Application No.1989/1998 for
recovery of the dues of the said Workmen. In the said proceedings, the
Respondent filed Written Statement disputing the claim of the Workmen
claiming that there was no Employer-Employee relationship between them.
It is further stated that in the said Written Statement, contention was not
taken that the Application is not maintainable with the signature of the
present Petitioner nor there is any allegation leveled against the Petitioner
that he has forged the signature of the concerned Workmen.
4.3. It is also stated in the Memo of Petition that the learned Labour Court
passed the impugned Order, dated 13.2.2020, by which, the recovery
application of the present Petitioner has been rejected and further, the
learned Labour Court directed the I/c. Registrar of the said Court to submit a
Written Complaint before the Court having jurisdiction against the Petitioner
for committing alleged offences punishable under Sections 463, 464, 465 &
466 of the Indian Penal Code, 1860 for committing forgery in the
proceedings of the said Court i.e. Exh.1-Petition of the said case as provided

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180 LABOUR LAW NOTES 2021 (1) LLN

in Section 340 read with Section 195(1)(b) of the Code of Criminal

Procedure, 1973. The Petitioner has therefore filed the present Petition
challenging the said order.
5. At the outset, learned Advocate for the Petitioner has fairly submitted
that he is not challenging the findings recorded by the learned Labour Court
with regard to Issue No.1 framed by learned Labour Court.
6. Learned advocate, Mr. Mishra appearing for the Petitioner has assailed
the impugned Order mainly on the ground that the learned Labour Court has
framed three issues, which read as under:
(1) Whether the Applicant is entitled for, on behalf of Workmen, the due
amounts under various heads as stated in the annexure, from the
opponents under Section 33-C(2) of the I.D. Act as prayed in para
No.8(a) of the Petition ?
(2) Whether the record of Court i.e. Ex.1-Petition in this case is tampered
with ? If yes, than who has tampered the same and whether it amounts to
a criminal offences ? If so what will be consequence ?
(3) What order ?
7. Learned Advocate has also referred to the answer given by the learned
Labour Court to the issues framed by the learned Labour Court, which read
as under:
(1) Negative.
(2) Affirmative. The Ex.1-Petition i.e. the record of this Court is
tampered by learned Union Representative Mr. Subhash B. Chaudhary by
putting signatures of Workmen on page No.7. This amounts to a Criminal
offense and so direction for instituting prosecution against him is to be
passed.
(3) As per Final Order.
8. It is submitted that while discussing the Issue No.1, the learned Labour
Court has referred to the provision contained in Section 33-C(2) of the
Industrial Disputes Act, 1947 and, thereafter, observed that the Petitioner
was authorized by the Workmen in his personal capacity and the said
authorization falls under the purview “any other person authorized by him in
writing in this behalf”. It is, therefore, submitted that when the Petitioner
was authorized person on behalf of the concerned Workmen for filing an
application under Section 33-C(2) of the Industrial Disputes Act, 1947, there
was no reason for the Petitioner to forge the signature of other three
Workmen and, therefore, the learned Labour Court ought not to have
directed the I/c. Registrar of the learned Labour Court to file Complaint
against the present Petitioner.

Labour Law Notes / January-2021

January 2021 Subhash Bajrangsingh Chaudhary v. J.K. Laxmi Cement Ltd. 181
(Guj.) (V.M. Pancholi, J.)
9. Learned Advocate would thereafter contend that the concerned
Workmen gave authority to the Petitioner to file an application under Section
33-C(2) of the Industrial Disputes Act, 1947 and the said Authorization
Letter is referred to by him, copy of which is produced at Page No.76 of the
compilation. Learned Advocate would further submit that the concerned
Advocate submitted an application for getting certified copy of the
application, Exh.1 and the Order passed by the Court on the objection raised
for filing of the Vakalatnama and the said application was given on
20.8.2009. Learned advocate further submitted that the certified copy of
application, Exh.1, copy of which is produced at Page No.97, does not bear
the signature of three Workmen, however, copy of application, Exh.1, which
is produced at Page No.90 of the compilation, is not certified copy of the
said application, wherein the signature of three Workmen are found. Thus
relying upon the aforesaid two documents, it is submitted that without
conducting Preliminary Inquiry, the concerned Labour Court has passed an
order of filing Complaint for the offences under Sections 463, 464, 465 &
466 of the Indian Penal Code, 1860, which is not permissible.
10. Learned Advocate has thereafter referred to the provision contained in
Section 195(1)(b) of the Code of Criminal Procedure, 1973 as well as
Section 340 of the Code of Criminal Procedure, 1973. After referring to the
said provisions, it is submitted that the Preliminary Inquiry is required to be
conducted before giving the direction to file Complaint.
11. In support of the said contentions, learned advocate has placed
reliance upon the decision rendered by the Hon’ble Supreme Court in case of
Sharad Pawar v. Jagmohan Dalmiya and others, 2010 (15) SCC 290.
12. Learned Advocate has, therefore, urged that the impugned Order
passed by the learned Labour Court be quashed and set aside.
13. I have considered the submissions canvassed by learned Advocate for
the Petitioner. I have perused the material placed on record and the relevant
provisions of law as well as the decision upon which reliance has been
placed by learned Advocate for the Petitioner.
14. From the material placed on record, it has emerged that the Petitioner,
who was working as General Secretary of Rashtriya Labour Union, filed an
application under Section 33-C(2) of the Industrial Disputes Act, 1947
before the learned Labour Court, Ahmedabad. The said Application was
filed on behalf of 38 Workmen as mentioned in the Annexure produced with
the said application. While deciding the Issue No.1, the learned Labour
Court has, after considering the provision contained in Section 33-C(2) of
the Industrial Disputes Act, 1947, recorded finding that as an authorized
person, the Petitioner can file the application under Section 33-C(2) of the
Industrial Disputes Act, 1947, however, it was also noticed by learned
Labour Court that the application, Exh.1 filed by the Petitioner was initially

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182 LABOUR LAW NOTES 2021 (1) LLN

bearing the signature of the Petitioner only, however subsequently, it was

found that three other Workmen have also signed the said application. The
relevant portion of the said application is placed on record at Page No.90 of
the compilation. The learned Labour Court has, therefore, held preliminary
inquiry and even the Issue No.2 was specifically framed as “Whether the
record of Court i.e. Ex.1-Petition in this case is tampered with? If yes, than
who has tampered the same and whether it amounts to a Criminal offences ?
If so what will be consequence ?
Thus specific issue was framed by the learned Labour Court and the
opportunity was given to the present Petitioner. The Petitioner also gave written
submission at Exh.109. It is also specifically observed by learned Labour Court
that the Petitioner also argued regarding the issue of tampering the case record.
Thus, the opportunity of hearing was given to the Petitioner. After considering
relevant provisions contained in Section 195(1)(b) of the Code of Criminal
Procedure, 1973 read with Section 340 of the Code of Criminal Procedure,
1973, the learned Labour Court has directed the I/c. Registrar to file Complaint
against the Petitioner for the alleged offences punishable under Sections 463,
464, 465 & 466 of the Indian Penal Code, 1860.
15. Learned Advocate for the Applicant has fairly submitted during the
course of hearing of this Application that the Order passed by the learned
Labour Court has been implemented and the Complaint is filed against the
Petitioner before the Competent Court. Therefore, when the impugned Order
is already implemented and Criminal Complaint is filed against the
Petitioner. If the Petitioner is of the opinion that the said Complaint is
wrongly filed against the Petitioner, it is always open for him to file
appropriate proceeding before the appropriate Court for quashing the said
Complaint, which is now filed against him.
16. This Court has also examined the documents, which are produced on
record at Page No.90 as well as Page No.97 of the compilation and prima
facie it is revealed that in the document which is produced at Page No.97,
the signatures of three Workmen are not found, whereas in the document,
which is produced at Page No.90, the signatures of three Workmen are
found. It is the case of the Petitioner that he has not forged the signature of
the said three Workmen as the Petitioner is authorized to file an Application
on behalf of 38 Workmen, however according to this Court, the Petitioner
can raise all such submissions at the time of trial of Criminal case arising out
of the Complaint, which is now filed against the Petitioner before the
appropriate forum.
17. This Court has also gone through the reasoning recorded by learned
Labour Court while passing the impugned Order and this Court is of the
view that no error is committed by the learned Labour Court while passing
the impugned Order, which requires any interference in the present Petition.
The Petition is accordingly dismissed.
  

Labour Law Notes / January-2021

January 2021 Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi 183
(DB) (Guj.) (A.J. Shastri, J.)
2021 (1) LLN 183 (DB) (Guj.)
IN THE HIGH COURT OF GUJARAT
Vikram Nath, C.J. & A.J. Shastri, J.
R/L.P.A. No.140 of 2020 in R/S.C.A. No.15786 of 2019, C.Appl. No.1 of 2020 in
R/L.P.A. No.140 of 2020, R/L.P.A. No.135 of 2020 in Special Civil Application No.15805 of 2019,
C.Appl. No.1 of 2020 in R/L.P.A. No. 135 of 2020 in S.C.Appl. No.15805 of 2019, R/L.P.A. No.136 of
2020 in S.C.Appl. No.15810 of 2019, C.Appl. No.1 of 2020 in R/L.P.A. No.136 of 2020 in S.C.Appl. No.
15810 of 2019, R/L.P.A. No.142 of 2020 in S.C.Appl. No.15809 of 2019, C.Appl. No.1 of 2020 in
R/L.P.A. No.142 of 2020 in S.C.Appl No.15809 of 2019, R/L.P.A. No.143 of 2020 in S.C. Appl No.
15811 of 2019, C.Appl. No.1 of 2020 in R/L.P.A. No.143 of 2020 in S.C.Appl. No.15811 of 2019,
R/L.P.A. No.144 of 2020 in S.C.Appl. No.15806 of 2019, C.Appl. No. 1 of 2020 in R/L.P.A. No.144 of
2020 in S.C.Appl. No.15806 of 2019, R/L.P.A. No. 145 of 2020 in S.C.Appl. No.15815 of 2019, C.Appl.
No.1 of 2020 in R/L.P.A. No.145 of 2020 in S.C.Appl. No.15815 of 2019, R/L.P.A. No.146 of 2020 in
S.C.Appl. No. 15804 of 2019, C.Appl. No.1 of 2020 in R/L.P.A. No.146 of 2020 in S.C.Appl. No. 15804
of 2019, R/L.P.A. No.148 of 2020 in S.C.Appl. No. 15807 of 2019, C.Appl. No.1 of 2020 in R/L.P.A.
No.148 of 2020 in S.C.Appl. No.15807 of 2019, R/L.P.A. No.156 of 2020 in S.C.Appl. No.15808 of
2019 and C.Appl. No.1 of 2020 in R/L.P.A. No. 156 of 2020 in S.C.Appl. No.15808 of 2019

13.2.2020
Gujarat Water Supply and Sewerage Board .....Appellant
Vs.
Bhaijibhai Somabhai Pagi .....Respondent
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Sections 25-F & 33-
A — Conditions precedent to Retrenchment — Special provisions
regarding change of conditions of service — Respondent engaged by
Appellant as Temporary Daily Rated Labourer on Ad hoc basis —
Appellant passed instructions to cut short strength of such Workers as
economic measure — Such Daily Wagers filed Second Appeal
apprehending their termination — Statement made by Appellant that if
in future services of Respondents required to be terminated, those
would be as per law — Respondent terminated by Appellant along with
10 others after complying with Section 25-F — Respondent raised
Industrial Dispute under Section 33-A — Labour Court passed Award
holding that said action was during pendency of main reference — On
challenge by Appellant, Single Judge held that no case made out for
interference and confirmed Award of Labour Court — On challenge,
held, it is not disputed that activity found to be of perennial nature —
Apart from that, it appears that Reference (Demand) No.1 of 2003 very
much pending consideration — Presiding Officer found that
discontinuance of Workman took place after cognizance of reference
which was in violation of Section 33-A — Award of only 25% amount of
Back Wages would be just and reasonable which warrant no

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interference in absence of any other distinguishable material — Court

examined Sections 33 & 33-A — It has been held in series of
propositions that if approval is not granted, Order of Dismissal or
Discharge not to be operative — Effect of violation of Statutory
consequences must be given full effect as dealt with by Single Judge —
No distinguishable material brought on record, warranting Court to
disturb or substitute findings — Appeal dismissed along with other
group Appeals. (Paras 7, 7.1 to 7.16)
CASES REFERRED
Blue Star Employees’ Union v. Ex Off. Principal Secy. to Govt., 2000 (4) LLN 1213
(SC) ........................................................................................................................5.2, 7.12
General Manager, Haryana Roadways v. Rudhan Singh, 2005 (3) LLN 754 (SC) ........5.2, 7.13
L. Robert D’Souza v. Executive Engineer, Southern Railway, 1982 (1) SCC 645 ........5.2, 7.11
Management of Narendra and Co. Pvt. Ltd. v. Workmen of Narendra and Co., 2016 (1)
LLN 12 (SC) ...................................................................................................................7.15
Union of India v. Jagdish Pandey, 2010 (7) SCC 689....................................................5.2, 7.14
D.G. Chauhan, Advocate for Appellant.
Manish S. Shah, Advocate for Respondent.
Finding — L.P.A. dismissed.
JUDGMENT
A.J. Shastri, J.
1. The present group of Letters Patent Appeals is filed under Clause 15 of
the Letters Patent by the Original Petitioners for assailing the Judgment and
Order passed by the learned Single Judge, dated 16.12.2019 in a group of
Petitions.
2. Since the present group of Letters Patent Appeals arises out of a
common oral Judgment and raising identical issue of law and facts, the
group is taken up for hearing finally with the consent of learned Counsels
and decided to be dealt with by the present Common Order. Accordingly,
Letter Patent Appeal No.140 of 2020 is being treated as a lead matter, which
will govern the rest of the matters.
3. The lead Letters Patent Appeal is arising out of Special Civil
Application No.15786 of 2019, in which, the Appellant-Board has filed a
Petition under Articles 226 & 227 of the Constitution of India. The premise
is that the Appellant is a body corporate established and constituted under
the provisions of Gujarat Water Supply and Sewerage Board Act, 1978, for
rapid development and proper regulation and monitoring of water supply and
sewerage services in the State of Gujarat. In discharge of the said function,
since the board maintains and repairs the water supply scheme intermittently,
they engaged temporary daily rated Labourers. In that context, the
Respondent was engaged as a daily rated Employee with effect from

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January 2021 Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi 185
(DB) (Guj.) (A.J. Shastri, J.)
1.2.1994 on NMR. on purely temporary and ad-hoc basis due to the exigency
of the work of water supply scheme.
3.1. It is the case of the Appellant-Board that the State Government, as an
economic measure, had passed on instructions, to cut short the strength of
daily rated Employees working at different schemes in the State including
the schemes run and managed by the Appellant-Board. As a result of this, on
apprehension of termination and discontinuance, the Respondent along with
several daily rated workers approached this Court by way of filing Special
Civil Application No.12279 of 2000 with Special Civil Application No.117
of 2001 and Special Civil Application No.9065 of 2000. During the course
of adjudication of the said Petitions, a statement was made by the Appellate-
Board before this Court that if and when in future the services of Respondent
and allied Workers are required to be terminated, the same would be in
accordance with law. As a result of this, by way of an Order, dated
20.6.2001, the Petitions came to be disposed of. But at that time, one of the
grievances was that the Appellant-Board is not maintaining any seniority.
3.2. It has been further the case of the Appellant-Board that the
Respondent was junior and the surplus Labourer, hence, came to be
retrenched in view of economic measures vide Order, dated 31.3.2003 along
with 10 other daily rated labourers by declaring them to be surplus, after
complying with procedure as required under Section 25-F of the Industrial
Dispute Act (hereinafter referred as to the “Act”). In case of the present
proceeding, the Respondent was paid an amount of `13,579 by way of
Retrenchment Compensation. It is against this Retrenchment Order that the
Respondent filed a Complaint, being Complaint No.1 of 2003 in Reference
(Demand) No.1 of 2003 before the Labour Court, Himmatnagar under
Section 33-A of the Act. It was alleged by the Respondent that the said main
Reference (Demand) No.1 of 2003 was pending adjudication before the
Labour Court, Himmatnagar wherein demand for regularization of service
was one of the prime claims.
3.3. In this application submitted under Section 33-A of the Act, the
present Appellant-Board submitted a Written Statement at Exh.10 and
denied all the statement of facts and allegations by way of Defence. But
ultimately, after detailed examination, the learned Presiding Officer of the
Labour Court was pleased to pass an Award, dated 22.2.2019, which found
that the said action was during pendency of the main reference.
3.4. The case of the Appellant - Board, is that incidentally the facts ought
to have been taken note of by the learned Presiding Officer, that after full-
fledged adjudication even the main reference was rejected vide Order, dated
28.3.2016 and such proceeding has not been taken into consideration. After
detailing out, a petition was brought before this Court, seeking following
reliefs:

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“17. (A) Your Lordships be pleased to issue a Writ of Certiorari and/or any other
appropriate Writ, order or direction in the like nature to quash and set aside
the impugned Award, dated 22.2.2019 passed by the Labour Court, Modasa
in Complaint No.1 of 2003 in Reference (Demand) No.1 of 2003.
(B) Pending the hearing and final disposal of this Petition Your Lordships be
pleased to stay the execution, implementation and operation of the impugned
Award, dated 22.2.2019 passed by the Labour Court, Modasa in Complaint
No.1 of 2003 in Reference (Demand) No.1 of 2003.
(C) Any other and further relief may be granted as Your Lordships deemed
fit, just and proper in the interest of justice.”
3.5. The said Petition, along with other Petitions, came up for
consideration before the learned Single Judge, who vide Judgment and
Order, dated 16.12.2019 found that no case is made out to call for any
interference. The Judgment and Award passed by the learned Presiding
Officer of Labour Court, Modasa came to be confirmed with a consequential
direction. The operative part of the said Judgment is reproduced hereinafter:
“19. Resultantly, all these Petitions are dismissed. The Judgment and Award,
dated 22.2.2019 passed by the Labour Court, Modasa in Reference (Demand)
No.1 of 2003 is confirmed. The Petitioner-Board is directed to reinstate the
Respondent-Workmen on their original posts with continuity of service and with
25% Back Wages with cost of `3,000 (Rupees Three Thousand Only) within a
period of 30 days from the date of receipt of a copy of this Judgment. Direct
service is permitted.”
3.6. It is this Judgment and Order passed by the learned Single Judge,
which is made the subject matter of this group of Letters Patent Appeals
before us.
3.7. Rest of the Appeals contain almost similar background of facts,
hence, are not reproduced to avoid unnecessary burden of the Judgment, but
the situation would govern the said remaining matters as well.
4. We have heard Shri. D. G. Chauhan, learned Counsel appearing for the
Appellant-Board and Shri. Manish S. Shah, learned Counsel appearing on
behalf of the Respondent by way of caveator in all Appeals.
5. Shri. D.G. Chauhan, learned Counsel appearing for the Appellant-
Board, has vehemently submitted that these Respondents, daily rated
Labourers, were working as a stop gap arrangement under the scheme and
now practically the scheme has been closed. Resultantly, it is not possible
for the Appellant-Board, to reinstate as ordered by the Courts below
including by the learned Single Judge. Shri. Chauhan, learned Counsel has
further contended that to entertain Complaint under Section 33-A of the Act,
it presupposes that an element of Section 33 of the Act will have to be
established on record and here is a case in which no material was adduced by
the Respondent to indicate that Complaint is entertainable. It has further

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January 2021 Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi 187
(DB) (Guj.) (A.J. Shastri, J.)
been submitted that while making a Complaint, a foundation of violation of
Section 33 of the Act will have to be specifically asserted and looking to the
averments contained in the Complaint, no such requirement has been
fulfilled. Resultantly, as per the award passed and confirmed by the learned
Single Judge, such error deserves to be corrected. It has further been
contended that as held in a series of decisions, the Retrenchment is not to be
construed as change of condition to attract Section 33-A of the Act. Here is
the case where the Workmen have been discontinued from service after a
payment of Retrenchment Compensation. Therefore, there is hardly case
made out for invoking Section 33-A of the Act. Apart from this, a bare
reading of the impugned Award passed by the learned Presiding Officer
clearly indicates that no issue has been framed of Section 33 of the Act
specifically. Instead a reference is made of Section 33-A of the Act. Further,
there is no discussion about the Retrenchment Orders passed by the
Appellant-Board. That being so, the original Award since suffering from
vices of serious non application of mind, the learned Single Judge ought to
have examined on that count as well. Having not done so, the error
committed by the learned Single Judge deserves to be corrected. It has
further been contended that there is a stiff difference between the scope of
reference under Section 10 of the Act and breach of Section 33-A of the Act.
This distinction has not been maintained by the learned Presiding Officer
and has not been properly construed by the learned Single Judge as well.
Resultantly, the error committed by the learned Single Judge deserves to be
corrected.
5.1. Shri Chauhan, learned Counsel, has further contended that despite
the fact that there is no material placed by each of the Respondent that they
have not been gain fully employed elsewhere. Resultantly, to grant particular
Back Wages is also out of place from the record of the case. Further this
claim, has been generated after almost a period of 12 years and there seems
to be no explanation of the delay. When that is so, the Award passed by the
learned Presiding Officer is erroneous and having not appreciated the Order
passed by the learned Single Judge also it deserves to be corrected. Shri
Chauhan, learned Counsel has submitted that the Award in question is a non-
Speaking Order practically, since there appears to be no discussion on the
grounds on which back wages has been awarded. Further there is no
justification in passing the impugned Award particularly when in the year
2016 the original reference came to be dismissed. It has been further
contended that since there appears to be no evidence, no reasons to the
material issues involved, there is hardly any case made to support the
impugned Award. In any case, alternatively, Shri. Chauhan, learned Counsel
has submitted that this is a fit case where even a lump sum Compensation
also if to be awarded would meet the ends of justice.

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5.2. To support his submissions, following are the decisions pressed into
service by the Shri Chauhan, learned Counsel which would be dealt with in
the present Judgment at an appropriate stage:
(a) In the case of L. Robert D’Souza v. Executive Engineer, Southern
Railway and another, 1982 (1) SCC 645;
(b) In the case of Blue Star Employees’ Union v. Ex Off. Principal Secy.
to Govt. and another, 2000 (4) LLN 1213 (SC) : 2000 (8) SCC 94;
(c) In the case of General Manager, Haryana Roadways v. Rudhan
Singh, 2005 (3) LLN 754 (SC) : 2005 (5) SCC 591; and
(d) In the case of Union of India and others v. Jagdish Pandey and
others, 2010 (7) SCC 689.
5.3. No other submissions have been made by Shri. D.G. Chauhan,
learned Counsel for the Appellant-Board.
6. To meet with the stand taken by Shri. D.G. Chauhan, learned Counsel
appearing for the Appellant-Board, Shri. Manish S. Shah, learned Counsel
appearing on behalf of the Respondent-Workmen, has vehemently contended
that there is no error whatsoever committed by the learned Single Judge in
passing the impugned Judgment. In fact, the detailed discussion and
examination of fact including interpretation of particular Section, relevant to
the controversy has been taken note of and only thereafter a reasoned order
is passed. When that be so, such exercise of discretion undertaken by the
learned Single Judge cannot be faulted in any manner by the Appellants.
Hence, no case is made out to call for any interference.
6.1. Shri Shah, learned Counsel has further contended that this
maintenance and regulating the Water Supply across the State is a
continuous activity. Scheme after schemes are being floated on a routine
manner and, therefore, to take up the plea that scheme is closed and as such
the Respondents have been discontinued is a submission that has no legs to
stand. Shri Shah, learned Counsel has further submitted that to examine the
validity of action of the discontinuance pending, the reference for
regularization, the facts are required to be examined by way of scope
contained under Section 33-A of the Act. The element required to be
examined has been properly examined by the Court below as well as by the
learned Single Judge. It has been categorically found that this discontinuance
has taken place in the pending reference for regularization before the Labour
Court. As such, certainly, the same would amount to change of service
condition as emphasized under Section 33 of the Act. As such, there is no
error of any nature committed either by the learned Presiding Officer of the
Court below or by the learned Single Judge in delivering the Judgment.

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January 2021 Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi 189
(DB) (Guj.) (A.J. Shastri, J.)
6.2. Shri Shah, learned Counsel has further submitted that it is quite
illogical to submit that issues have not been properly framed. On the
contrary, a bare look at the issues framed at Item No.1 itself, reflected on
page 129 of Letters Patent Appeal compilation, makes it absolutely clear that
both parties were conscious of the discontinuance action, pending reference
and dealt with Section 33 Complaint. As such, it is in significant to contend
that issue of Section 33 of the Act is not raised instead of Section 33-A of
the Act is framed particularly when on the basis of undisputed facts, it
clearly transpires that the discontinuance or Retrenchment as said by the
Appellant-Board, has taken place during such proceeding. Therefore, a well-
reasoned order has been passed by the learned Presiding Officer. When it has
been noticed clearly that for discontinuing the Employee, no express
permission prior in point of time is obtained by the Appellant-Board, and
such circumstance, reflected undisputedly from the record, has constrained
the Court from not passing any order in favour of the Appellant-Board.
There appears to be no error of any nature, which is required to be interfered
with.
6.3. Shri Shah, learned Counsel has further submitted that a bare look at
the Order passed by the learned Single Judge clearly established that a
detailed order is passed while exercising due discretion vested in law. Hence,
Letters Patent Appeal, being meritless, deserves to be dismissed. So far as
the Back Wages part is concerned, a very balanced order has been passed,
according to Mr. Shah, learned Counsel, the normal rule is that whenever an
action found to be bad in law while reinstating the Employee, the order of
Back Wages would be a routine consequence and here instead of awarding
100% Back Wages, a mere 25% Back Wages has been awarded by striking
balance between both the parties. When such sound discretion has been
exercised by the learned Presiding Officer as well as appreciated by the
learned Single Judge, there is hardly any case made out by the Appellant.
Accordingly, the present Letters Patent Appeal deserves to be dismissed.
Additionally, according to Mr. Shah, learned Counsel, the Judgments, which
have been tried to be pressed into service are Judgments that do not have
identical facts. Resultantly, the same cannot be stretched to this peculiar
background of fact.
7. Having heard learned Counsels appearing on behalf of the respective
parties and having gone through the Order passed by the learned Single
Judge along with the record placed before us, a few circumstances can not be
left unnoticed by this Court.
7.1. The Appellant-Board, is obliged with the duty of dealing with and
regulating the Water Supply at various places across the State. It is not
disputed that this activity is found to be continuous in nature. Apart from
that, so far as present background is concerned, it appears that a Reference
(Demand) No.1 of 2003 was very much pending for consideration, the

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190 LABOUR LAW NOTES 2021 (1) LLN

initiation appears to have been from the Demand Notice in origin dated
19.10.2000. After conciliation proceeding, by Order, dated 5.2.2003, it was
referred to the learned Presiding Officer for adjudication. These Respondents
have been in the service, of course, on a daily rated basis. For seeking
regularization, these Workmen have agitated an issue and it has been found
that immediately after the reference was made vide Order, dated 5.2.2003,
these Respondents have been discontinued with effect from 31.3.2003. So
prima facie, the fact having been found by the learned Presiding Officer that
the discontinuance has taken place is after taking cognizance of the
reference. Undisputedly for such discontinuance, no prior permission is
taken. Now this is the specific conclusion arrived at by the learned Presiding
Officer while passing the impugned Award.
7.2. Further, prior to this, there was apprehended discontinuance, which
was made the subject matter of proceeding before this Court in the form of
Writ Petitions. Those Writ Petitions have been disposed of by reposing
confidence upon the statement made by the learned Counsel that daily rated
Employees will not be discontinued without due process of law. The
Petitions came to be withdrawn and the same was followed by way of
reference, as stated hereinabove.
7.3. On the basis of such factual details, the learned Presiding Officer of
the Labour Court was confronted with a situation as to whether there is any
breach of Section 33 of the Act which necessitates the Workmen to submit
Complaint under Section 33-A of the Act. While examining this issue, the
learned Presiding Officer has not only examined at length and analyzed the
factual details but has also clearly given effect to the rigor of Section 33 of
the Act. Only after considering the same, the Award in question has been
passed, which prima facie does not appear to be perverse in any form. On
the contrary, there is a clear conclusion that has been arrived at after hearing
at length both the learned Counsels, that there is a violation of Section 33 of
the Act, which necessitated the respondent to invoke Section 33-A of the
Act. A clear finding, reflected from Page 133 itself, which is also well
supported by the reason, is assigned by the Court below.
7.4. It further appears from the record that pursuant to the remand order,
passed by this Court in the earlier round of litigation, it was then examined
in which it is found that there was no permission taken. As such at the
relevant point of time when the action was assailed, it was found that said
action was in violation of Section 33-A of the Act. Therefore, on the basis of
the said prevailing circumstance, since the Award is passed, it appears that
the conclusion of the learned Single Judge is just and proper.
7.5. Apart from this, it has been found from the record that while
disposing of the Petitions, the learned Single Judge has categorically
examined the scope of Section 33 and Section 33-A of the Act at length. We
are quite satisfied that no better submission or new case is tried to be made

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January 2021 Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi 191
(DB) (Guj.) (A.J. Shastri, J.)
out which may allow us to substitute the finding arrived at by the learned
Single Judge. We see no reason to interfere with the discretion exercised by
the learned Single Judge and we have also found that while arriving at a
conclusion, the learned Single Judge has clearly examined the decisions
applicable to the facts of the present case and then passed an order. Since,
the exercise of the learned Single Judge appears to be at length, we deem it
proper to reproduce the relevant observations made by the learned Single
Judge:
“15. It is the matter of record that at the time when the Petitioners have made the
Complaints of the breach of Section 33 of the I.D. Act, during the pendency of
the dispute, the dispute was in relation to the regularisation in the service, which
was referred to the Labour Court, Modasa for adjudication on 5.2.2003 being the
Reference (Demand) No.1 of 2003. During the pendency of the same on
31.3.2003, the services came to be terminated. Admittedly, there was no prior
permission or approval sought of the Labour Court, Modasa where the dispute
for regularisation was pending.
16. It is a matter on record that on the part of the Respondent-Complainants the
claim of breach of Section 33 of the I.D. Act is on the fully established ground of
the illegal termination of their services without seeking any permission or
approval from the Court before whom such demand of regularisation had been
pending.
17. It is not in dispute that both the sides were permitted to adduce the evidence
after once this Court had remanded the matter back and they were given the
fullest opportunities to plea their respective cases, for the purpose of pleading
contravention of Section 33 and to maintain complaint under Section 33-A of the
I.D. Act. The initial challenge was on the ground of non-framing of issue and the
Court not having recorded the findings about the breach of Section 33 of the I.D.
Act, which is a must for the Complaint to be succeed under Section 33-A of the
I.D. Act. Remand was therefore ordered and that compliance is duly made. This
Court sees absolutely no error much less any patent illegality warranting
interference by this Court in the Judgment and Order of the Labour Court.
Requirement of law of the Labour Court recording appropriate specific findings
of alleged breach of Section 33 of the I.D. Act and its passing consequential and
appropriate direction under Section 33 read with Section 33-A of the I.D. Act as
detailed in the decision of the Apex Court in case of Jaipur Zila Sahakari
Bhoomi Vikas Bank Ltd. (supra) is duly fulfilled.
18. On independent examination of entire oral as well as documentary evidences,
this Court notices that the Petitioner has not maintained the Seniority List and
those, who continued to be in service whether were senior/junior to the
Respondent’s could have been established only on the strength of such evidence.
Respondents have worked for nearly 9 years and their requests for regularisation
in wake of Resolution, dated 17.10.1988 and other decisions on the subject were
pending for consideration and to terminate their services without seeking any
permission of the Court, is rightly held in contravention of Section 33 of the said
Act and that would amount to change in the service condition during the
pendency of the proceedings. Hence, the detailed Judgment of the Trial Court
deserves no interference.

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192 LABOUR LAW NOTES 2021 (1) LLN

19. Resultantly, all these Petitions are dismissed. The Judgment and Award,,
dated 22.2.2019 passed by the Labour Court, Modasa in Reference (Demand)
No. 1 of 2003 is confirmed. The Petitioner-Board is directed to reinstate the
Respondent-Workmen on their original posts with continuity of service and with
25% Back Wages with Cost of `3,000 (Rupees Three Thousand Only) within a
period of 30 days from the date of receipt of a copy of this Judgment. Direct
Service is permitted.”
7.6. From the aforesaid background of facts even candidly the learned
Counsel appearing for the Appellant-Board, has also submitted that he is not
in a position to reflect anything that any prior permission or approval is
sought from the Labour Court. That being the admitted position, the resultant
effect has been given by the learned Single Judge.
7.7. So far as the financial crunch is concerned, the same is not possible
to be accepted by us, particularly when a clear violation is visible from the
record, which is practically an undisputed position. As such, awarding only
25% would be a just and a very reasonable consequential order, which we
would not like to interfere with in the absence of any other distinguishable
material.
7.8. Additionally, we are also conscious about the fact that normally
whenever any action is found to be Dehors the statutory provision, a natural
consequence must follow. Here is a case, where on the basis of undisputed
record, it has been clearly found that there is a violation of statute. As such,
on the contrary, the awarding of 25% amount of Back Wages would be too
reasonable a figure, which we are not inclined to disturb in exercise of
Appellate jurisdiction. As such contentions which have been raised by the
learned Counsel on behalf of the Appellant-Board, are not found to be
impressive enough to substitute the finding in place of the conclusion of the
learned Single Judge.
7.9. Now coming to the decisions aspects, which are pressed into service,
we would apply a caveat to this in view of well sounded proposition of law
on the issue of precedent. The Apex Court has time and again submitted that
if the background of facts is different even one additional fact may make a
world of difference in applying the precedent. As such, keeping conscious
this well propounded proposition, we have examined the decisions placed
before us. Upon perusal, we deem it proper not to apply the same as a
straitjacket formula.
7.10. While examining the Order, passed by the learned Single Judge, we
have seen Section 33 as well as Section 33-A of the Act. It is categorically
held by series of propositions that if approval is not granted, the order of
discontinuance or dismissal or discharge shall not be operative. The
Employee concerned shall be deemed to be treated in service whereas, here
undisputedly, no attempt is made to seek the approval. Apart from that,
violation of this would not automatically give rise to a reinstatement and

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January 2021 Gujarat Water Supply and Sewerage Board v. Bhaijibhai Somabhai Pagi 193
(DB) (Guj.) (A.J. Shastri, J.)
Back Wages always. Here is a case where the Appellant-Board continuously
discharges a significant function of regulating Water Supply across the State
and this continuous process requires a legitimate need of such kind of
Labourers. This was the reason why the regularization reference was made.
As such, since this is the situation, we are of the considered opinion that
Orders passed regarding reinstating with 25% Back Wages cannot be said to
be either perverse or unwarranted. The effect of violation of statutory
consequence must be given full effect which rightly has been dealt with by
the learned Single Judge.
7.11. So far as the Judgment, which is in the case of L. Robert D’Souza
(supra) is concerned, the said Judgment is practically based upon the
interpretation of Section 25-F of the Act. The controversy before us is
regarding violation of Section 33 of the Act. Therefore, in respectful
agreement with the said decision, we are of the opinion that the effect of
such decision is not possible to be given mechanically when the present
controversy is altogether different.
7.12. The decision in the case of Blue Star Employees’ Union (supra) is,
on the contrary, demolishing the stand of learned Counsel for the Appellant
that instead of framing issue of Section 33 of the Act issue related to Section
33-A of the Act is framed by the learned Presiding Officer. In Paragraph 5 of
the said Judgment itself, it is visible that such mistake has crept in probably
by way of typographical error. Therefore, when the substance is established,
a wrong mentioning of Section by mistake or inadvertence cannot be
significant enough to lean in favour of Appellant. Here, the Respondent has
established before the learned Presiding Officer as well as before the learned
Single Judge, a foundational fact that without prior permission, during
pendency of reference for regularization discontinuance has taken place.
This irregularity of issue by mistake is of no significance in our considered
opinion. On the contrary, we are also of the opinion that this point is not
available to the Appellant-Board having once participated throughout the
proceeding on such issue. Hence, we are not in a position to agree with the
submissions made by the learned Counsel for the Appellant-Board. A
reading of this Judgment, on the contrary, clearly indicates that the moment
contravention of Section 33 of the Act is found, no further facts are to be
analyzed. In the aforesaid case submitted, where it appears that workmen
have not been able to establish the contravention of Section 33 of the Act
and therefore, in that context, a decision is delivered by the Apex Court.
Whereas, here is a case where on the basis of undisputed facts that are not
only recorded by the learned Presiding Officer, but have also been found by
the learned Single Judge, no prior permission is obtained during pendency of
reference. It was thus clearly found that there was a violation of Section 33
of the Act. As such, mechanically, we are not in a position to apply or stretch
the issue to this peculiar background of facts.

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7.13. Yet another decision, which has been pressed into service is in the
case of General Manager, Haryana Roadways (supra) where the Court was
confronted with an issue about the Back Wages. The observations which
have been made by the Apex Court are in a different factual matrix while
agreeing with the proposition of law laid down by the Apex Court. There is
no thumb rule that in every case entire Back Wages should be awarded
moment violation of Section 25 of the Act is visible. We are also of the
similar view that this principle has not been violated, on the contrary, has
been followed. Here is a case on hand where though it was found clearly by
both the Courts that there is a violation of Section 33 of the Act and
foundational facts though having been established, yet only 25% Back
Wages have been awarded instead of 100%. As such, we are of the
considered opinion that a balance order has been passed by the learned
Presiding Officer, which is justifiably not disturbed by the learned Single
Judge.
7.14. So far as another decision, which is in the case of Union of India
(supra) is concerned, the same also is considered by us while coming to this
conclusion. As such, from an overall reading of the record and independently
examining the Order passed by the learned Single Judge, we see no error to
interfere with the conclusion arrived at. Accordingly, Appeal lacks merit.
7.15. Additionally, while coming to this conclusion, we are also
conscious about the scope enlisted by the Apex Court while dealing with
Order passed by the learned Single Judge in an Appeal and the relevant
observations contained in Paragraph No.5 in the case of Management of
Narendra and Co. Pvt. Ltd. v. Workmen of Narendra and Co., 2016 (1)
LLN 12 (SC) : 2016 (3) SCC 340, we are of the opinion that no better
submission nor any distinguishable material is brought before us from the
same record which may permit us to disturb or substitute the finding. When
that be so, no error since visible, the present Letters Patent Appeal is
dismissed with no order as to costs.
7.16. Since this is the ultimate outcome of the present Letters Patent
Appeal, the other group of Letters Patent Appeals attached with this are also
dismissed accordingly.
7.17. Since main Appeals are dismissed, connecting Civil Applications
are also dismissed hereby.
  

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January 2021 Chandrasinh Relibhai Chaudhari v. State of Gujarat 195
(Guj.) (Biren Vaishnav, J.)
2021 (1) LLN 195 (Guj.)
IN THE HIGH COURT OF GUJARAT
Biren Vaishnav, J.
R/S.C.Appl. No.16433 of 2017
4.8.2020
Chandrasinh Relibhai Chaudhari …..Petitioner
Vs.
State of Gujarat & 2 others …..Respondents
SERVICE LAW — Recovery of Salary paid — Whether warranted —
Petitioner to retire from service at age of 60 — However, six months
before date of Retirement, Order passed by Employer that Retirement
age of Petitioner should be considered as 58 years and not 60 years —
And, ordered recovery of Wages for period of 2 years — Held, not a
case of misrepresentation by Petitioner — Miscalculation in age of
Retirement of Petitioner was fault of Respondents and not that of
Petitioner — Consequently, Order of Recovery of Salary of Petitioner,
erroneous and set aside — Respondents directed to consider 60 years as
age of Retirement of Petitioner and grant all Terminal benefits
accordingly — Writ Petition allowed. (Paras 8, 9 & 10)
CASES REFERRED
State of Punjab v. Rafiq Masih, 2015 (3) LLN 575 (SC) ...........................................................7
Nilesh M. Shah (780), Advocate for Petitioner No.1.
KM Antani, Asst Government Pleader (1) for Respondent Nos. 1 & 3; C.J. Vin (978) for
the Respondent No.2.
Finding — W.P. allowed.
JUDGMENT
1. The Petitioner has filed this Petition under Article 226 of the
Constitution of India with a prayer to quash and set aside the Orders, dated
16.2.2015 and 3.7.2017. By the aforesaid orders, the Respondent No.1- State
of Gujarat has directed the Respondent No. 2 i.e. Veer Narmad South
Gujarat University to recover the amount of salaries earned for a period of
two years from the Petitioner. In turn, the Respondent No.2 by the Order,
dated 3.7.2017 has directed recovery of `12,26,274 towards the amount of
salary for a period of two years.
2. The facts in brief are as under:
2.1. The Petitioner was appointed as a Junior Clerk-cum-Typist on an Ad
hoc basis on a Pay Scale of `260-400 on 18.5.1982. Thereafter, he was
appointed by an Order, dated 14.10.1982 on probation for a period of two

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196 LABOUR LAW NOTES 2021 (1) LLN

years which was confirmed with effect from 15.10.1984 by an Order, dated
29.10.1984. The Petitioner got revision of pay from the Pay Scale of `260-
400 to `950-1,500 with effect from 1.1.1986. On 29.9.1989, the Petitioner
was promoted as Junior Stenographer on an Ad hoc basis for a period of six
months. On completion of 9 years, the Petitioner was awarded the first
higher grade scale. He was thereafter on 17.10.1992 appointed as a Junior
Stenographer on probation for a period of two years which was confirmed by
an Order, dated 28.10.1994. Here too, the Petitioner was given the benefit of
revised Pay Scale by an Order, dated 4.7.1988. A Seniority List was issued
on 27.5.2009 wherein the name of the Petitioner was shown and the date of
confirmation was shown as 8.10.1994. In the year 2006, the Petitioner was
granted the second higher grade Pay Scale.
2.2. On 31.3.2012, the Respondent No.2 University issued an order that
the Petitioner will retire with effect from 14.6.2014 on account of
superannuation at the age of 60. On 11.12.2014, it appears that Respondent
No.2 passed an order stating that the age of retirement of the Petitioner
should be considered as 58 and not 60 and therefore the Petitioner ought to
have been treated as retired with effect from 14.6.2012 and not 14.6.2014.
Reliance was placed on a resolution of the State Government, dated
5.6.2000. Accordingly, the Order, dated 31.3.2012 retiring the Petitioner
from 14.6.2014 was directed to be treated as cancelled. The Petitioner was
treated to have been retired with effect from 14.6.2012.
2.3. On 16.2.2015 an order was passed that the salary for period of two
years from 15.6.2012 to 14.6.2014 be recovered from the Petitioner on
account of he having worked for a period of two years beyond the age of
superannuation. The Petitioner was directed to deposit amount of `12,26,274
as salary by an Order, dated 1.4.2015. Reliance was placed on a resolution,
dated 26.9.1989 which referred to Government resolution, dated 15.10.1984.
The order was challenged by the Petitioner by filing S.C.A. No.11966 of
2015. The orders of recovery were set aside on the ground that they were
without any opportunity of hearing. The Petitioner accordingly was granted
an opportunity of hearing and after hearing the Petitioner, he was again
visited with an order of 3.7.2017 reiterating that the Petitioner ought to
deposit sum of `12,26,274.
3. Mr. Nilesh Shah, learned Advocate for the Petitioner has submitted
that the orders are bad. The Petitioner was admittedly appointed prior to
1.10.1984, as he was appointed as a Junior Clerk-cum-Typist on 18.5.1982.
Accordingly therefore as per the resolution of 1989 since his appointment
was prior to 1.10.1984, his age of superannuation was 60 years and not 58
years. He submitted that for no fault of the Petitioner, he was continued in
service for a period of two years, he served with the department and
therefore recovery of the amount of `12 lakhs towards salaries is illegal. He
further submitted that the Petitioner completed 32 years of actual service,

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January 2021 Chandrasinh Relibhai Chaudhari v. State of Gujarat 197
(Guj.) (Biren Vaishnav, J.)
Pension papers were sent for sanction and it is not the case of the
Respondents that the Petitioner continued work on any misrepresentation of
facts made by the Petitioner and therefore the order of recovery and resultant
withholding of pension was illegal. He submitted that the resolution, dated
26.9.1989 was wrongly interpreted by the Respondents. He further submitted
that parity ought to be given to the Petitioner as one Bhaskar Chhotalal
Solanki and one Prakash Natwarlal Bardoliya who were appointed as Junior
Stenographers after 1984 i.e. in 1988 were continued in service till they
attained the age of 60 and no orders of recovery have been passed. Mr. Shah
would therefore submit that the orders be quashed and set aside.
4. Mr. K.M. Antani, learned AGP appears for the Respondent-State. An
Affidavit in reply has been filed by the Joint Commissioner for Higher
Education on behalf of Respondent No.1. The Affidavit reiterated the service
details of the Petitioner. What was stated is that by virtue of resolution, dated
26.9.1989, the age prescribed for retirement was 60 years for those, who
were recruited prior to 1.10.1984 whereas the age of retirement for those
recruited on or from 1.10.1984 was 58 years. The case of the deponent on
behalf of the State is that the Petitioner was appointed as a Stenographer by
direct selection in 1992 and though the Petitioner was an existing Employee
as on the date of the resolution, since he was freshly recruited as a Junior
Stenographer only on 2.11.1992, he cannot avail the benefit of the age of
superannuation of 60 years. Mr. Antani, learned AGP further drew the
attention of the Court to the Affidavit-in-reply contending that there was
misinterpretation of the Government resolution and therefore the Petitioner
was continued to be retained in service upto the age of 60 years and
therefore recovery of amount of `12,26,274 from the salary of the Petitioner
was justified. To the contention that similarly situated Employees were
continued in service, the submission of learned AGP was that Article 14
cannot be pressed into service for wrongful benefit.
5. A rejoinder Affidavit was filed by the Petitioner to the Affidavit filed
by the State contending that the retirement age in fact was 60 years, the
Petitioner was appointed prior to 1984 and therefore the interpretation of the
department was incorrect.
6. Mr. C.J. Vin, learned Advocate appearing for Respondent University
also drew the attention of the Court to the Affidavit filed on behalf of the
University and submitted that the Petitioner’s service details albeit indicated
that the Petitioner was appointed as a Junior Clerk-cum-Typist on an Ad hoc
basis vide Order, dated 18.5.1982 for a period of 175 days. He joined duty
on 27.5.1982. On 14.10.1982 the Petitioner was reappointed for a period of
two years, thereafter by an Order, dated 29.10.1984 the Petitioner was
confirmed in employment and was granted promotion. As reading the Order,
dated 17.10.1992, according to the University, the Petitioner applied for
appointment to the post of Junior Stenographer by his application, dated

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198 LABOUR LAW NOTES 2021 (1) LLN

29.6.1992 and it was on the basis of this application that the Petitioner was
appointed as a Junior Stenographer in the year 1992. It was on this basis that
the Petitioner ought to have retired from service in the year 2012 and
therefore the recovery is just and proper. He submitted that the Petitioner
was heard by the Respondents and thereafter an order was passed.
7. Having heard learned Advocates for the respective parties, the
controversy need not detain us for very long. It is a settled principle of law
that an order of recovery cannot be passed merely on the ground when in
fact there has been no misrepresentation by the Petitioner or an Employee
and the Petitioner Employee has continued to serve with the Respondents for
a period of two years for no fault of his. Neither of the parties have disputed
the long line of Judgments and citations which have reiterated the position
rightly so that there can be no recovery of salary for which no
misrepresentation has been made. The Apex Court in the case of State of
Punjab and others v. Rafiq Masih, 2015 (3) LLN 575 (SC) : 2015 (5) CTC
455 (SC) : 2015 (4) SCC 334 : AIR 2015 SC 696, has considered the issue at
length and held that there can be no recovery when an Employee has
continued to serve without his fault, particularly, when the recovery is from
a retired Employee and causes undue hardship. This case therefore squarely
falls within the parameters so decided by the decision of the Apex Court in
the case of Rafiq Masih (supra).
8. There is even more than what appears to be a case of mere recovery on
account of misrepresentation or mistake on the part of the Employee. The
stand of the Respondents from the Affidavits-in-reply filed is that as per the
resolution of the Government, dated 26.9.1989 the age of superannuation of
the Petitioner ought to have been 58 years and not 60 years. This is based on
a resolution, dated 15.10.1984 which is the referred resolution at Sr. No.1 in
the Government resolution, dated 26.9.1989 (page 32). Reliance was placed
on Clause 8 of the resolution, which holds that the age of superannuation of
the staff recruited before 1.10.1984 shall be 60 years and the age of
superannuation and retirement for the staff, which was recruited after on and
from 1.10.1984 shall be 58 years. Reading of the replies would indicate that
the stand of the University and the State is that the Petitioner had applied for
the post of Junior Stenographer in the year 1992 and therefore his
appointment was post 1.10.1984 and therefore the Petitioner ought to have
retired at the age of 58. By the aforesaid interpretation that is sought to be
canvassed by the Respondents, the Respondents have lost sight of the fact
that the Petitioner did work as is evident from his service details from the
date of his initial appointment as a Junior Clerk-cum-Typist on an Ad hoc
basis to which post he was appointed on 18.5.1982. It is not even disputed by
the University as well as by the State that the Petitioner did work with the
University from 1982 till 1992 continuously and earned higher scales of pay
and promotion. The Respondents have treated his appointment from
6.11.1992. The Respondents have treated his appointment as a Junior

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January 2021 Chandrasinh Relibhai Chaudhari v. State of Gujarat 199
(Guj.) (Biren Vaishnav, J.)
Stenographer with effect from 2.11.1992 as a fresh appointment. In fact it is
not a misinterpretation or misrepresentation of the resolution of the
Government by the Petitioner but by the State itself.
9. The issue that a person, who is recruited prior to 1.10.1984 and even
his past service even if it is fresh recruitment needs to be taken as service
continuous for the purposes of Government resolution, dated 15.10.1984 is
now a matter which is decided by a Division Bench of this court in LPA
No.2259 of 2017 by a decision, dated 2.5.2019. In the aforesaid decision, the
Division Bench has interpreted in detail relying on several decisions of this
court, the resolution dated 15.10.1984, based on which the resolution of
26.9.1989 is passed. The relevant paragraphs of the Judgment read as under
where even the word ‘recruitment has been interpreted and it has been held
that past service should be considered for the purposes of recruitment and
ought to be counted for Pension purpose.
“4. In the Petitions so filed, there were two classes of teaching staff concerned —
(a) direct recruits who had two parts of service (i) pre 1.4.1982 in private
colleges and (ii) post 1.4.1982 on resignation in other colleges through a direct
selection
(b) the other class of the teaching staff who may have continued in the same
institution but through a due process of selection, either by promotion or under
the career advancement scheme risen in hierarchy from Tutor to Reader to
Professor - a career spanning pre 1.4.1982 period and post 1.4.1982 period. In
both these cases, the stand of the State Government was that since their initial
appointment was prior to 1.4.1982, they were required to opt for Pension
option to switch over from CPF, which they did not, hence they were not
entitled to Pension.
4.1. The case of the Petitioners was that irrespective of a fresh selection, post
1.4.1982, directly by joining an institution or climbing the ranks through
promotion or career advancement they were “recruited” after 1.4.1982 and
therefore as per Clause (4) of the Government Resolution dated 15.10.1984, they
were “automatically” governed by the Pension scheme and there was no need for
them to give any option for doing so. It was in this context that in one of the
Judgment (which all the Judgments under challenge referred to) i.e. in the case of
State of Gujarat Thro Secretary v. Bhupendra Vallabhdas Chudasama and
another, L.P.A. No.981 of 2015, the Court had answered the questions so raised
in favour of the pensioner. The questions so raised read as under:
1. Whether an Employee like the original Petitioner, who has been appointed
after the G.R. dated 15.10.1984 can be denied the Pension/pensionary benefits
under the G.R. dated 15.10.1984 on the ground that he had not exercised the
option for GPF ?
2. Whether past services of such an Employee is required to be counted for
qualifying services for pension?
3. Whether the past services is required to be counted/considered for fixation of
the Pension or for qualifying services for pension only ?

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200 LABOUR LAW NOTES 2021 (1) LLN

... … …
(c) Reading of Clauses 3, 4 & 6 of the Government Resolution, dated 15.10.1984
indicate that the members of the existing staff recruited before 1.4.1982 and
those staff, who have retired on or after 1.4.1982 and prior to the date of issue of
the resolution only have to exercise their option. Those recruited on or after
1.4.1982 shall automatically be governed by the Pension scheme of 1984. In the
case of D.S Nakara vs. Union of India, 1983 (1) SCC 305, the Apex Court has
held that the Pension retirees have to be treated as a homogeneous class and that
any further classification amongst them would be violative of Article 14 of the
Constitution of India. It was further held that the principle that when a certain
date or eligibility criteria is selected with reference to legislative or executive
measure which has the pernicious tendency of dividing an otherwise
homogeneous class and the choice of beneficiaries of the legislative/executive
action becomes selective, the division or classification made by choice of date or
eligibility criteria must have some relation to the objects sought to be achieved.
And apart from the first test that the division must be referable to some rational
principle, if the choice of the date or classification is wholly unrelated to the
objects sought to be achieved, it cannot be upheld on the specious plea that was
the choice of the Legislature. In the facts of the present case, it is evident in
accordance with the case of D.S. Nakara (supra), that all of them form a
homogeneous group who have been working with the institution and therefore it
is not fair for the ‘State’ to discriminate only on the ground of cut off date.
(d) What is evident from the service details of the Respondents is that they had
two spells of service. The first spell was prior to 1.4.1982 and the second one
after 1.4.1982. As far as the first spell is concerned there was only one scheme
CPF, therefore there was no question of exercising option. In the second spell,
when they joined there was no question of exercising option as the Pension
scheme was compulsory. They were, to use the words of Clause 4 of the
resolution, “automatically” governed by the Pension scheme as therefore there
was no fault, inaction or omission which would disentitle them to claim Pension.
The disability of filling in the option form or asking for switching over belatedly
cannot be held against them.
(e) As held in the case of S.S. Patel (supra), which has received affirmation even
by the Apex Court that the two clauses of the Government Resolution, dated
15.10.1984 i.e. Clauses 4 & 6 respectively cannot be read in isolation of each
other, it will not be out of place to repeat the observations of this Court to make
that clear:
“16. At the same time the prior to issuance of Government Resolution, dated
15.10.1984, which was made effective with retrospective effect from 1.4.1982,
Employee had no opportunity whatsoever, whether to opt for Pension or for
any other scheme and such an Employee used to be governed by prevailing
system of C.P.F.. When the G.R. dated 15.10.1984 came to be issued, the
Petitioner was serving as a lecturer with S.V.R. College of Engineering and
Technology at Surat, which was a Regional Engineering College and later on
nomenclatured as National Institute of Technology, the G.R. was not
applicable to Engineering College, which was under Government of India.
From the record, what appears, the Petitioner had continued to be Governed by
the existing scheme ? the provident fund for Employees of the S.V.R. College

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January 2021 Chandrasinh Relibhai Chaudhari v. State of Gujarat 201
(Guj.) (Biren Vaishnav, J.)
of Engineering and Technology (Surat) Society ? as per option exercised in
1978. There is no dispute about the amount which was credited in the account
of the Petitioner, came to be collected and ultimately in year 2000, the
Petitioner deposited the said amount with interest. After resigning from the
S.V.R. College of Engineering, when the Petitioner joined as a ‘Reader’ with
South Gujarat University from 31.3.1986 and served upto 5.10.1988, the
Petitioner was a Recruitee after 1.4.1982 and was being governed
automatically for pension scheme as introduced by G.R. dated 15.10.1984 and
accordingly no contributory amount was deducted and only G.P.F. account was
credited. Thus, as a Reader with South Gujarat University, the Petitioner was
getting benefit of the Pension scheme. Even as per the Respondents, the period
commencing from 31.3.1986 till the date of voluntary retirement on
30.11.2000, the service of the Petitioner can be considered for pensionable job.
The above fact is admitted in para 10 of the Affidavit-in-reply dated 19th
December, 2007 filed by Accounts Officer of Commissioner of Higher
Education and, therefore, the interpretation of Government Resolution, dated
15.10.1984 mainly revolves round Clauses 3, 4, 6 & 7 of the above
Government Resolution and to be examined accordingly.
16.1. If the Government Resolution dated 15.10.1984 is perused the preamble of
the resolution is pertaining to grant of benefit of Pension scheme for the teaching
staff in the Non-Government Affiliated Colleges and in the Universities at par
with Employees of the Government of Gujarat under Revised Pension Rules,
1950 as amended from time to time. Therefore, if Clause 3 is perused, two types
of Employees were to exercise option, viz. (1) members of the existing staff
recruited before 1.4.1982 and (2) those staff who have retired on or after
1.4.1982 and prior to the date of issue of this resolution within a period of one
year from the above date, whether to continue in C.P.F. or to go under the
Pension scheme and such option was to be final. In Clause 4, it is clearly stated
that member of the staff recruited on or after 1st April 1982 shall automatically
be governed by this scheme and such staff will not be allowed to opt for C.P.F.
Therefore, if principle of plain reading is applied, all the contents of the clauses
read together, what transpires is that the member of the staff recruited on or after
1st April, 1982 was not supposed to exercise an option since he was to be
automatically governed by the scheme. So far as the Petitioner is concerned, he
was recruited directly after the advertisement issued by the concerned
Universities on the post of ‘Reader’ in South Gujarat University on 31.3.1986 to
5.10.1988 and later on appointed in the M.S. University as a ‘Reader’ from
6.10.1988 after undergoing valid selection procedure. Thus, the case of the
Petitioner is not governed by Clause 3 of the Government Resolution in view of
fact that neither the Petitioner is a member of existing staff recruited prior to
1.4.1982 nor he retired from 1.4.1982 to 15.10.1984. Therefore, the contention of
learned AGP that the Petitioner was to exercise option for pension which was
mandatory, cannot be accepted and is hereby rejected.
16.2. So far as width and amplitude of Clause 6 of Government Resolution is
concerned, it confers benefits upon an Employee of all previous service whether
temporary, officiating or permanent either in one or more than one non-
government aided Colleges, University, Higher Secondary School, who are being
paid grant-in-aid from Government shall be taken into account for computing the
length of qualifying service for Pension under this scheme. If the above clause is

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202 LABOUR LAW NOTES 2021 (1) LLN

made applicable to the Petitioner, service rendered in the B.V.M. College of

Engineering at Vallabh Vidhyanagar as ‘Assistant Lecturer’ and even,
subsequent service as a ‘Lecturer’ in the S.V.R. College of Engineering and
Technology are to be counted since the above two Colleges are recognised
Colleges and in view of service rendered in Non-Government Aided Colleges of
the State of Gujarat and Union of India can be considered for qualifying service
for Pension and calculation of pensionable qualifying service by two offices of
Respondent Nos.1 & 5 at the time of accepting application for voluntary
retirement of the Petitioner was just and proper and cannot be brought within the
preview of Rule 41(1)(a) of the Pension Rules, to deny Pension to the Petitioner,
on the ground that the Petitioner had not rendered any service in a pensionable
establishment. The fact remains that the Petitioner was a member of C.P.F. in
both the above Colleges and resigned from the service and ceased to be a
member of C.P.F. for all purposes. It is very clear from the plain reading of
clause 6 that clause 6 does not distinguish Employees rendering service in a
pensionable or non-pensionable establishment and on the contrary it covers all
kinds of services even temporary or officiating rendered in Non-Government
Aided Colleges. Even otherwise, no material contrary exist to show that the
above two Colleges were non-pensionable establishment.
16.3. If the submissions of learned AGP are accepted that to get benefits of
Clause 6 of G.R. of 15.10.1984, option is to be exercised as per Clause 3,
provisions of Clause 6 will become redundant and inoperative for a recruitee on
or after 1.4.1982. Neither Clause 4 nor Clause 6 envisaged or mandate a recruitee
after 1.4.1982 to exercise any option as per Clause 3. It can be safely concluded
from the above, that the basic purpose of Clause 6 is to complete minimum years
of qualified Pension service for all existing and recruited Employees before
1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after
1.4.1982, like the Petitioner, Clause 6 cannot be pressed into service for
exercising option for the scheme by both pre and post 1.4.1982 recruitees,
otherwise even Clause 4 will be rendered nugatory. At the same time, failure to
exercise an option on the part of post 1.4.1982 recruitee, making him vulnerable
for benefits of previous services as per Clause 6, will be against the spirit and
object of the scheme and will be creating artificial, arbitrary and discriminatory
dividing line amongst university teaching staff not found in Clause 6.
16.4. Likewise it was not obligatory at all upon the Petitioner to exercise option
as per subsequent G.R. ‘s dated 17.12.1987 and 17.9.1991 in view of the fact
that the Petitioner was automatically governed by pension scheme by G.R.
dated 15.10.1984. At the same time there is no break of service of the
Petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of
Clause 6 are not to be gone into.
16.5. Thus, when Clause 6 is unambiguous and benefits of all previous services
are not restricted to optee only, no other interpretation is permissible and
restricting such benefits to the recruitee like the petitioner pursuant to fresh
appointment on or after 1.4.1982 and automatically governed by Clause 4 of
the G.R., any attempt to add or alter any meaning of any word of phrase of
Clause 6 would amount giving narrow meaning to Clause 6, which is not
envisaged at all by the draftsman of the resolution. Therefore, the Petitioner is
entitled for continuity and gets benefit of all previous services rendered in

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January 2021 Chandrasinh Relibhai Chaudhari v. State of Gujarat 203
(Guj.) (Biren Vaishnav, J.)
B.V.M. College of Engineering and S.V.R. College of Engineering and
Technology and the same is rightly considered by Respondents No.1 & 4 at
relevant point of time while granting voluntarily retirement to the Petitioner
and, therefore, now they cannot be permitted to take another view and they are
estopped from doing so. The Petitioner has relied and acted on the orders
passed by Respondents No.1 & 4 and preponed the date of superannuation now
cannot be placed in disadvantageous position on the basis of ipsi-dixi of
officers of Respondents No.1 & 4.
16.6. The above fact will be clear if we read Clause 7 in juxtaposition to Clause
4 & 6, which carves out an exception with regard to applicability of general
provision of Chapter 11 of B.C.S.R. Volume I in granting retirement benefits in
case if a special provisions are made, the above applicability can be kept aside
and this pension scheme of G.R. dated 15.10.1984 being a special scheme
conferring benefits of Pension and retiral dues, will govern the case of the
Petitioner and the contention of learned AGP about applicability of Rule
41(1)(a) cannot be accepted and is hereby rejected.”
(f) Considering the tenor of the word “recruitment” as held in the case of K.
Narayan v. State of Karnataka, AIR 1994 SC 55, which according to the
dictionary meaning means “enlist”, it includes any method of inducting a person
in Public service. Appointment, selection, promotion, deputation are all well
known methods of recruitment.
12. Having perused the facts in the context of the term what is apparent is from the
Government Resolutions, dated 23.11.1976 and 14.9.1988, the selection is by
issuance of a Public advertisement. Once a person makes an application, a duly
constituted selection committee is formed. Even in the Career Advancement
Scheme, the modus is of recruitment. All these aspects were rightly considered in
the decision in the case of Dr. S.G. Trivedi (supra) where the Court specifically
held that if it is found that Respondent No.1 joined services of South Gujarat
University only on 1.10.1984 and the earlier services of Respondent No.1 cannot
be said to have any bearing on question of applicability of the Pension scheme
pursuant to Government Resolution dated 15.10.1984, his case for receiving
pension would get a boost. On the other hand, if it is found that Respondent No.1
who had served in private affiliated aided college right from 1964 and switched
over to the university services on 1.101984 after tendering technical resignation,
joined his duties immediately on the next date in the University Services and that
therefore, Respondent No.1 should be treated to have been in service prior to
1.4.1982, the State Government would be justified in contending that Tribunal
erred in granting pensionary benefits to the Respondent No.1.
12.1. In the cases of L.P. Joshi (supra), Banuben Dhakkan (supra), Bhupendra
Chudasama (supra) and Uma Chudasama (supra), this Court has reiterated and
revisited the entire scheme of the Government Resolution, dated 15.10.1984 and
in no uncertain terms held that if Clause No.3 of the resolution is perused there
are two types of Employees, who have to exercise option namely (a) members of
the existing staff recruited before 1.4.1982 (b) Those staff, who have retired on
or after 1.4.1982 and prior to the issuance of the Government Resolution, dated
15.10.1984. it is therefore the relief of option. Once an Employee is a recruit post
1.4.1982, he automatically comes over to the Pension scheme.

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204 LABOUR LAW NOTES 2021 (1) LLN

13. The objection of the State therefore that the subsequent decision of the
Respondents herein to ask for a switch over due to the rise in Pension amounts to
the Revision of pay will also not hold good. Their coming over to pension being
automatic, the State is obliged to extend the benefits. Once the learned Single
Judge of the Judgment under challenge had asked the State to so consider, the
State was bound to consider the same positively in light of the directions so
issued and not reject the same on the ground of financial implications. In fact,
financial burden is no ground to deny benefits arising from the Pension rules.
14. It is required to be noted that so far as the teaching staff is concerned, there is
no concept of automatic promotion on higher posts on completion of certain
number of years. An Employee has to acquire educational qualification and put
in number of service to secure eligibility criteria for recruitment on higher post.
Any appointment either direct or by transfer or by changing the post in the same
institute and or in different institute for securing higher post or on a same post
made after 1982 is covered under Pension scheme - GPF for which option is not
to be given as CPF scheme is discontinued with effect from 1.4.1982. It is settled
that the Employees even though recruited before 1.4.1982 on a given post but
subsequently i.e. after 1.4.1982 if they are again recruited after following the
procedure prescribed therein, then such Employees are not required to give any
option to switch over from CPF to GPF because of requirement of Clause 4 of
the Government Resolution dated 15.10.1984. The said clause 4 at the cost of
repetition is reproduced herein below:
“4. The member of the staff recruited on or after 1st April 1982 shall
automatically be governed by this scheme. Such staff will not be allowed to opt
for contributory provident fund scheme.”
14.1 Moreover, any recruitment/appointment made after 1.4.1982 for the
teaching staff is through advertisement and selection hence it is fresh
appointment and therefore Pension scheme i.e. GPF is automatically applicable.
Further, for the non teaching staff also, their promotion at a particular time is to
be considered as recruitment and therefore they need not give the option at the
time of promotion. In view of the overall facts of the case we are not inclined to
entertain these Appeals and therefore the Appeals deserve to be dismissed.”
Accordingly, this Court is of the opinion that the Orders, dated 16.2.2015
and 3.7.2017 by which the Petitioner has been ordered to refund an amount
of `12,26,274 deserve to be quashed and set aside.
10. In view of the above, the Orders, dated 16.2.2015 and 3.7.2017 are
hereby quashed and set aside. The Respondents are directed to consider the
Petitioner’s date of superannuation as 14.6.2014 and the pensionary benefits,
gratuity, encashment of leave etc. be counted and calculated considering the
date of superannuation as 14.6.2014. The pensionary benefits be paid as
exepditiously as possible and not later than 4 weeks from the date of receipt
of certified copy of the order. Petition is accordingly allowed. Rule is made
absolute accordingly.
  

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January 2021 Rameshbhai Laxmanbhai Khristi v. State of Gujarat 205
(Guj.) (Biren Vaishnav, J.)
2021 (1) LLN 205 (Guj.)
IN THE HIGH COURT OF GUJARAT
Biren Vaishnav, J.
R/Spl.C.Appli. No.12747 of 2020
20.10.2020
Rameshbhai Laxmanbhai Khristi …..Petitioner
Vs.
State of Gujarat …..Respondent
SERVICE LAW — Leave Encashment — Daily Wagers — Settled law
that Workers, who had completed 10 years as Daily Wagers to be
treated as Permanent Employees — Petitioners, held, to be extended 300
days of privilege leave and also Pensionary benefits including Terminal
benefits by counting service from initial date of Appointment and
benefits in terms of 300 days’ privilege leave and revised pensionary
arrears to be paid within 8 months from date of Order — Application
allowed. (Para 6)
Krishnan Gheariya for Murali N. Devnani, Advocate for Petitioner.
K.M. Antani, Assistant Government Pleader for Respondent.
Finding — W.P. allowed.
JUDGMENT
1. Rule returnable forthwith. Learned Assistant Government Pleader Mr.
Antani waives service of notice of rule for the Respondent-State.
2. With the consent of the learned Advocates appearing for the respective
parties, matter is taken up for final hearing today.
3. Heard learned Advocates appearing for the respective parties through
Video Conferencing.
4. In this Petition, under Article 226 of the Constitution of India, the
prayer of the Petitioner is for a Writ of Mandamus directing the Respondents
to release the benefits of encashment of 300 days unavailed leave as
envisaged in the GR, dated 17.10.1988 and also for a direction to revise the
Pension as well as Gratuity taking the date of initial appointment as a date of
computation for the purposes of such benefits.
5. This Court on 24.9.2020 in SCA No.11631/2020 passed the following
Order:
“Rule returnable forthwith. Learned Assistant Government Pleader Mr. Ishan
Joshi waives service of notice of rule for the Respondent-State.

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206 LABOUR LAW NOTES 2021 (1) LLN

With the consent of the learned Advocates appearing for the respective parties,
matter is taken up for final hearing today.
Heard learned Advocates appearing for the respective parties through Video
Conferencing.
The issue raised in this Petition in context of the prayers made that the
Petitioners be given the benefits of 300 days of privilege leave and revised the
Pension as well as Gratuity calculating from the date of an initial appointment is
covered by a decision, of which the Petitioner has extensively referred to in the
Petition in the case of Vallabhbhai Chhotubhai Chauhan v. State of Gujarat,
SCA No.1945/2014, dated 8.7.2015, in which, this Court in Paragraph Nos.4 and
5, has held as under:
“4. I need not adjudicate this petition on merits since the issue raised in this
Writ Application is squarely covered by a decision of this Court, dated
20.8.2014 in Special Civil Application No.5530 of 2003 and a Division Bench
decision of this Court in the case of State of Gujarat & anr. v. Mahendrakumar
Bhagvandas & anr., 2011 (2) GLR 1290. It appears that the learned Single
Judge relied on the Division Bench decision of this Court referred to above. I
may quote the relevant observations of the Division Bench as under:
“3. According to G.R., dated 17.10.1988, a committee under the
Chairmanship of Honourable Minister, Shri Daulatbhai Parmar, was
constituted to consider conditions of service of Daily Rated Labourers and
artisans employed in several departments of the State Government. That
committee had submitted its report and it was resolved to accept
recommendations of the committee and provide several benefits to the
Workmen concerned with effect from 1.10.1988. Those benefits included
Payment of Minimum Wages, paid weekly holidays, Medical facility and
National holidays. After completion of five years of continuous service in
terms of provisions of Section 25-B of the Industrial Disputes Act, 1947 such
Daily Rated Employees were to be entitled to fixed Monthly Salary of `750
with dearness allowance prevalent from time to time and few more benefits
of paid holidays and leave Wages as well as membership of Provident Fund.
It is stipulated in Clause 3 of the G.R., dated 17.10.1988 that Daily Rated
Employees, who had completed, as on 1.10.1988, continuous service of ten
years in terms of the provisions of Section 25-B of the Industrial Disputes
Act, 1947, would be treated as permanent and such Permanent Employees
shall be entitled to the Pay Scale of `750940 and shall also be paid dearness
allowance and House Rent Allowance accordingly. They would also be
entitled to Pension, Gratuity and benefits of Provident Fund in accordance
with prevalent rules. The age of Superannuation for such Permanent
Labourer is fixed at 60 years and the period of permanent service is to be
counted as pensionable service. It is further stipulated that the Employees,
who had completed 15 years of service as on 1.10.1988, shall be placed in the
Pay Scale as aforesaid and their age for Retirement shall be 60 years. Such
workers, who would have completed 15 years of service on 1.10.1988, were
to be entitled to one increment, and the Employees, who had completed 25
years of service were to be granted three increments, before fixing their
wages in the Pay Scale on 1.10.1988.

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January 2021 Rameshbhai Laxmanbhai Khristi v. State of Gujarat 207
(Guj.) (Biren Vaishnav, J.)
Bare reading of above stipulations contained in the G.R. Dated 17.10.1988
makes it crystal clear that upon completion of ten years of service, in terms of
the provisions of Section 25-B of the Industrial Disputes Act, 1947, on or
before 1.10.1988, Daily Rated Employees to whom the G.R. applied were to
be treated as Permanent Employees with concomitant benefits. It is further
clarified and resolved in Clause (10) of subsequent Resolution, dated
18.7.1994 that the Employees, who were completing 5/10/15 years of
continuous service due to which whose categories would change should be
immediately accorded benefits of the category in which such Employees
would fall. Government Resolution, dated 18.7.1994 is, according to its own
preamble, meant to supersede earlier instructions issued vide Government
Resolution, dated 3.11.1990. The instructions are primarily meant to regulate
treatment of Daily Rated Employees, who had completed one or more years
of service on 1.10.1988, with the stipulation that such Employees shall
continue to be treated as Daily Rated Employees. Detailed instructions have
been issued in said Government resolution for categorizing such Daily Rated
Employees and maintaining their Seniority lists, as also for regulating their
pension and termination of their service by way of retrenchment. At the end,
in Clause 15 of the Government resolution, it is stipulated that the word
‘permanent’ as used in G.R., dated 17.10.1988 is intended to provide
protection of service but not for treating such Employees on regular
establishment of the Government.
As noted earlier, subsequent G.R., dated 18.7.1994 is expressly superseding
the instructions contained in Government Resolution, dated 3.11.1990 but
does not supersede original G.R., dated 17.10.1988. It is also an admitted
position that most of substantive benefits of permanent service are already
accorded to the Employees concerned in terms of G.R., dated 17.10.1988.
Under such circumstances, it was argued that nomenclature for treating the
Employees concerned as permanent was clarified by the Government, and
hence, denial of few benefits was justified and in order. However, no ground
or rational basis could be made out for grant of most of the benefits to most
of the Employees in terms of G.R., dated 17.10.1988 and for denial of the
remaining few benefits. Once the Employees concerned were, in fact, treated
for all purposes as Permanent Employees in terms of G.R., dated 17.10.1988,
any discrimination or denial of benefits for a segment of such Employees,
who were subsequently rebranded as “Daily Wager” (rojamdar) by G.R.,
dated 18.7.1994, could not be rationally explained and could not be
countenanced in the face of Articles 14 & 16 of the Constitution. Nor can the
State Government legally take away the rights conferred and benefits, already
accorded to the Employees concerned by or under a subsequent Government
resolution, which expressly supersedes earlier instructions and not earlier
G.R., dated 17.10.1988 by which the benefits were accorded to the
Employees. It also sounds absurd and baseless that Employee employed on
daily wage basis for 15 years would be made permanent under G.R., dated
17.10.1988 but subsequently rebranded and treated as a Daily Wager. The
submission of learned AGP that such Employees had to continue as Daily
Wage Employee, with limited benefits in terms of subsequent G.R., dated
18.7.1994 and that they were at best “Permanent Daily Wage Employees”, is
contradictory and has no backing of any legal provision or precedent.

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208 LABOUR LAW NOTES 2021 (1) LLN

Therefore, there is no reason to interfere with the impugned Common

Judgment except for the clarification made hereunder.
Letters Patent Appeal Nos.960, 961, 964 & 965 of 2001 are preferred from
common Oral Judgment, dated 6.4.2000 of learned Single Judge of this
Court, inter alia, in Special Civil Application Nos.28, 64, 67 & 68 of 1988
whereby original Petitioners, working under the Appellants herein, were
directed to be given benefits in following terms:
“.................In terms of the Order passed in earlier case on 23.10.1999, the
Respondents are directed to extend all the benefits of Regular Employees to
the Petitioner, who have been made Permanent Employees in regular scale
of pay for more than 10 years of service. They should not be discriminated
with other Employees. With the aforesaid observations and direction all the
Petitions are allowed and accordingly disposed of.”
Apparently the aforesaid Resolution, dated 18.7.1994 was not pressed into
service when the impugned Judgment, dated 6.4.2000 was delivered. It is
observed by learned Single Judge as under:
“It appears that the Government Resolution is very clear that these
Petitioners, who have completed more than 10 years as Daily Workers will
be treated as Permanent Employees and they will get regular scale of pay.
When these Employees are treated as Permanent Employees with regular
scale of pay, I do not find any reasons that they will be deprived of the
benefits given to other Government employees of same category. There
cannot be any confusion about the Government Resolution and it is
obligatory on the part of the Government to extend all the benefits to these
Petitioners, who have been regularized on regular posts with regular scale
of pay” Letters Patent Appeal No.962 of 2001 is preferred from Oral
Judgment, dated 23.10.1999 of learned Single Judge in Special Civil
Application No.5757 of 1988. In that impugned Judgment also, the petition
was allowed with the direction to treat all the Workmen concerned as
Permanent Employees and to treat them at par with other Employees and to
grant all the benefits as such. Thus, common issue of interpretation and
application of relevant clause of Government Resolution, dated 17.10.1988
is involved in all the Appeals and it is decided as aforesaid against the
Appellant, in the facts and circumstances of each case.”
5. In view of the above, it is declared that the Petitioner is entitled for the
encashment of the Unavailed Privilege Leave to the extent of 300 days.”
Even reliance is placed by Mr. Ghevariya, learned Counsel for the Petitioners on
a decision rendered on 13.8.2020 in SCA No.7886/2020 wherein this Court
relied on a decision in the case of State of Gujarat and another v
Mahendrakumar Bhagvandas and another, 2011 (2) GLR 1290, The Order,
dated 13.8.2020 passed in SCA No.7886/2020 reads as under:
1. Heard Mr. Shalin Mehta learned Senior Advocate with Ms. Shikha Panchal
learned Advocate for the Petitioner, Mr. K.M. Antani learned AGP appearing
for Respondent Nos.1 & 2 and Mr. Nirzar Desai learned Advocate for
Respondent Nos.3 & 4.

Labour Law Notes / January-2021

January 2021 Rameshbhai Laxmanbhai Khristi v. State of Gujarat 209
(Guj.) (Biren Vaishnav, J.)
2. Rule returnable forthwith. With the consent of the learned Advocates for the
respective parties, the present Petition is taken up for final hearing.
3. The prayer in the Petition is that the Petitioner be extended the benefits of
leave encashment at the time of Retirement and counting of service from the
date of joining for the purposes of Pension and Gratuity.
4. The issue no longer requires extensive consideration. It is undisputed that the
Petitioner joined the services as a Daily Wager on 12.3.1985 and retired on
30.6.2016 rendering 31 years of service. It is also undisputed that the Petitioner
was also extended the benefits of Government Resolution, dated 17.10.1988
except those for which the Petition is filed i.e. leave encashment and counting
of service from the date of joining for the purposes of Pension.
5. The issue has been reiterated and reconsidered by several decisions of this
Court. The Division Bench of this Court in Letters Patent Appeal No.1567 of
2018 and allied matters, by a Judgment and Order, dated 28.12.2018, where the
Division Bench confirmed the order of the learned Single Judge which
considered the relevant decisions in context of the prayers in this Petition.
A. Leave Encashment at the time of retirement and death : State of Gujarat
and another v. Mahendrakumar Bhagvandas and another, 2011 (2) GLR
1290, [Paras 2, 5, 8]
B. Counting of service from the date of joining for the purposes of Pension:
Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub-Division, R&B
Deptt. and another, 1998 (2) GLH 1.
6. The Division Bench has quoted that Judgment in para 6 which reads as under:
“6. Next in line was the Judgment in the case of Tribhovanbhai Jerambhai v.
Dy. Executive Engineer, Sub-Division, R&B Deptt and another, 1998 (2) GLH
1, wherein this Hon’ble Court in paras 9 & 10 observed as under:
“9. In the Resolution, dated 17.10.1988, it has been envisaged that those
Workman who as on 1.10.1988 or thereafter completes ten years of
continuous service to be counted in accordance with provisions of Section
25-B of the Industrial Disputes Act shall be deemed to be permanent and
amongst other benefits conferred on being treated as permanent their age of
Superannuation was fixed at 60 years and they were made entitled for
Pensionary benefit. By yet another Resolution, dated 30.5.1989 (Annexure-E)
in which a specific query was raised at Item No.(6) with reference to
Resolution, dated 17.10.1988 about the calculation of period of qualifying
service for the purpose of entitlement to Pension in connection with the
Pensionary benefits made available to those Daily Wagers who are deemed to
be permanent on completion of ten years of service and it was specifically
made clear that within the meaning of Resolution, dated 17.10.1988, the
service which is to be counted is that which can be said as continuous within
the meaning of Section 25-B with effect from the date of entry in the service
is duty counted for the purpose of Pension and Pension has to be accordingly
determined. This does not say that qualifying service is to be counted with
effect from date of becoming permanent. This leaves no room of doubt that
the Resolution, dated 17.10.1988 along with clarification issued on the
various aspects of it vide Resolution, dated 30.5.1989 is in consonance with

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210 LABOUR LAW NOTES 2021 (1) LLN

the provisions of Rule 248 of the Bombay Civil Services Rules, 1959 which
provide that Government has not only power by general or special order to
permit service other than pensionable service, for performing which a
Government servant is paid from State revenues or from a local fund, to be
treated as duty counting for Pension and in issuing such an Order
Government is to specify the method by which the amount of duty shall be
calculated for the purpose of Pension. Once the Government has made it
clear that those who have completed ten years of service as Daily Rated
Workman are to be deemed permanent with effect from and after 17.10.1988
and are entitled to various benefits on that basis including Pension and
thereafter has provided by the Resolution, dated 30.5.1989 that the
continuous service for the purposes of pension, made available to Employees
under Resolution, dated 17.10.1988, is to be counted with effect from the
date of entry in the service provided it can be continuous within the meaning
of Section 25-B of the Industrial Act, thus making it clear that once a Daily
Rated Workman is treated to be permanent under the Resolution, dated
17.10.1988 his entire continuous service from the date of entry until he retires
including his services rendered prior to the date of his regularisation is taken
into consideration for the purpose of computing pension or making Pension
available to such retired Employee.
10. There is yet another aspect of the matter. Assuming that Bombay Civil
Services Rules do not provide for grant of pension to those, who are not
holding a permanent post in the service, then it must be held that Daily Rated
Workman working on Daily Wages, are ex cadre Employees and not
governed by particular service rules, but are governed by terms of
employment under which they have been engaged. This further leads to
conclusion that area of employment on Daily Wages is not covered by
Statutory Rules either promulgated under Act 309 or by other legislature
enactment. That is the area left uncovered by specific law, and such
employment is in exercise of general executive powers of the State and terms
and conditions of such employment is governed by terms of order under
which such employment is made and shall be further governed by orders
made by State in exercise of its executive power from time to time. The
Resolution, dated 17.10.88 & 30.5.89 shall thus govern the terms of
employment of such Employees. If considered from this view, the conclusion
will be the same.”
7. Mr. Nirzar Desai learned Advocate for Respondent Nos.3 & 4 has taken this
Court through the affidavit-in-reply filed to point out that the decision has been
taken in accordance with the Order passed by this Court and the representation
is rejected by the Order, dated 6.8.2020.
8. Registry to take on record the affidavit-in-reply.
9. The Division Bench has considered several decisions of this Court and the
issue for which the Petition is filed is covered by a decision in the case of
Mahendrakumar Bhagvandas (supra).
10. Accordingly, having considered the arguments of learned Senior Advocate
Mr. Shalin Mehta, learned AGP Mr. Antani for the State and Mr. Nirzar Desai

Labour Law Notes / January-2021

January 2021 Rameshbhai Laxmanbhai Khristi v. State of Gujarat 211
(Guj.) (Biren Vaishnav, J.)
for Respondent Nos.3 & 4, the Order, dated 6.8.2020 is quashed and set aside.
The Petition is allowed.
11. The Respondents are directed to give benefits of leave encashment and
recompute the Pension and the Pensionary benefits by counting service of the
Petitioner from the initial date of his appointment i.e. 12.3.1985 and revise all
the terminal benefits of the Petitioner and pay such amounts within a period of
8 (eight) weeks from the date of receipt of copy of this order. Rule is made
absolute. Registry to communicate the order through e-Mail.”
Considering the controversy involved in the Petition which is now settled in
view of the aforesaid decision, the Respondents are directed to extend the
benefits of 300 days privilege leave to the Petitioners and also revised
Pensionary benefits including the terminal benefits in case of the Petitioners and
recompute the Pension and the Pensionary benefits by counting the service of the
Petitioners from the initial date of appointment and the benefits that accrue to the
Petitioners in terms of privilege leave of 300 days and revised Pensionary
benefits together with the arrears shall be paid to the Petitioners preferably
within a period of 8 (eight) weeks from the date of receipt of copy of this order.
However, at this stage, Mr. Ghevariya states that the prayer for interest is not
pressed.
Rule is made absolute with no order as to costs.
The Registry to communicate the order through e-Mail.”
6. Considering the controversy involved in the Petition which is now
settled in view of the aforesaid decision, the Respondents are directed to
extend the benefits of 300 days privilege leave to the Petitioners and also
revised Pensionary benefits including the terminal benefits in case of the
Petitioners and recompute the pension and the Pensionary benefits by
counting the service of the Petitioners from the initial date of appointment
and the benefits that accrue to the Petitioners in terms of privilege leave of
300 days and revised Pensionary benefits together with the arrears shall be
paid to the Petitioners preferably within a period of 8 (eight) weeks from the
date of receipt of copy of this order. However, at this stage, Mr. Ghevariya
states that the prayer for interest is not pressed.
7. Rule is made absolute with no order as to costs.
8. The Registry to communicate the order through e-Mail.
  

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212 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 212 (HP)

IN THE HIGH COURT OF HIMACHAL PRADESH
Ajay Mohan Goel, J.
C.W.P. No.1298 of 2020
30.9.2020
Harish Kumar .....Petitioner
Vs.
State of Himachal Pradesh and Ors. .....Respondents
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Section 25-G —
Procedure for Retrenchment — Daily Wagers — Disengagement —
Delay in raising dispute — Effect — Compensation in lieu of
Reinstatement — Petitioner engaged as Daily Wager by Electrical
Division of Respondents in September 1999 — Disengaged in March
2001 — O.A. filed before Administrative Tribunal, which was dismissed
for want of jurisdiction —Writ Petition filed against disposed of with
direction to consider case of Petitioner in terms of Judgment in Partap
Chand v. H.P. State Electricity Board, C.W.P. 9467/ 2014 — Pursuant to
it, Reference made to Labour Court — Labour Court awarded lump
sum Compensation of `2,5000 with Interest at 9% p.a. from date of
Award — Aggrieved, Petitioner filed present Petition — No dispute that
Petitioner not completed 240 days of service in either a Calendar year or
for whole period of service — Labour Court held termination in
violation of Section 25-G which not assailed by Employer and attained
finality — High Court of view that Award of Tribunal in awarding
Compensation cannot be faulted with — After dismissal of O.A. by
Administrative Tribunal in 2004, no step taken by Petitioner till 2015 to
raise Industrial Dispute — On filing Writ Petition in 2015, Reference
made to Labour Court — Court cannot shut its eyes to fact that
Petitioner remained a mute spectator between years 2004 and 2015 for
which he cannot be rewarded Reinstatement — Amount of
Compensation also reasonable as Petitioner served only for about 18
months and did not complete 240 days of service in a Calendar year —
Petition being without merit dismissed. (Paras 13 to 16)
Daulat Ram v. Executive Engineer, C.W.P. No.1887 of 2017 ...................................................1
Harish Kumar v. State of H.P., C.W.P. No.3565 of 2015...........................................................3
Devender K. Sharma, Advocate for Petitioner.
Sumesh Raj & Sanjeev Sood, Additional Advocate Generals & Divya Sood, Deputy
Advocate General for Respondents.
Finding — W.P. dismissed.

Labour Law Notes / January-2021

January 2021 Harish Kumar v. State of Himachal Pradesh 213
(H.P.) (Biren Vaishnav, J.)
JUDGMENT
(Through Video Conferencing)
1. By way of this Petition, Petitioner has prayed for the following reliefs:
“(i) That the Award, dated 19.4.2019 passed by learned Tribunal below may
kindly be set-aside and the Respondent Department may kindly be directed
to reinstate of the Petitioner with full Back Wages, seniority in continuity of
service will all consequential service benefits and the illegal Termination
Order may kindly be quashed and set-aside in view of the Judgment passed
by this Hon’ble Court in titled as Daulat Ram v. Executive Engineer,
C.W.P. No.1887 of 2017, along with connected matters.
(ii) That the Respondent-Department may kindly be directed to regularize
the services of the Petitioner on the basis of policy framed by the State
Government of Himachal Pradesh”.
2. Brief facts necessary for the adjudication of the present Petition are
that the Petitioner was initially engaged as a Daily Wage Electrician in the
Electrical Division, Mandi, District Mandi, H.P., in the month of September,
1999. His services were disengaged in the month of March, 2001.
3. Feeling aggrieved, Petitioner filed Original Application No.358 of
2003, before erstwhile Himachal Pradesh Administrative Tribunal, which
Original Application as per learned Counsel for the Petitioner was dismissed
by learned Tribunal on 20.7.2004 for want of jurisdiction. Thereafter, the
Petitioner belatedly approached this Court in the year 2015 by way of titled
as Harish Kumar v. State of H.P. & others, C.W.P. No.3565 of 2015, which
Petition stood disposed of by this Court vide Judgment, dated 27.8.2015 in
the following terms:
“It is contended that the case of the Petitioners is squarely covered by Judgment,
dated 30th December 2014, delivered by this Court in a batch of Writ Petitions,
titled Pratap Chand v. Himachal Pradesh State Electricity Board and others,
C.W.P. No.9467 of 2014, being the lead case.
2. Issue notice. Mr. Romesh Verma, learned Additional Advocate General,
waives notice on behalf of the Respondents.
3. In the given circumstances, we deem it proper to direct the Respondents to
consider the case of the Petitioners, in terms of the Judgment (supra), and make a
decision within eight weeks. The said Judgment shall form part of this Judgment
also”.
4. Learned Counsel for the Petitioner has informed the Court that pursuant
to this order having been passed by the Court, a reference was made by the
appropriate Government to the learned Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P., under Section 10(1) of the Industrial
Disputes Act, 1947, which reference stands answered by the learned Court
below vide Award, dated 16.4.2019, which is the subject matter of this Writ
Petition.

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214 LABOUR LAW NOTES 2021 (1) LLN

5. The reference which was made by the appropriate Government for

adjudication reads as under:
“Whether termination of services of Shri Harish Kumar S/O Shri Brij Lai, R/O
Village Jharena, P.O. Pehad, Tehsil Sarkaghat, District Mandi, H.P. by the
Executive Engineer, Electrical Division, H.P.P.W.D., Mandi, District Mandi,
H.P. during March, 2001 without complying the provisions of the Industrial
Disputes Act, 1947, is legal and justified ? If not, keeping in view the delay of
more than 11 years in raising the Industrial Dispute, what amount of Back
Wages, seniority, past service benefits and Compensation the above aggrieved
Workman is entitled to from the above Employer ?”
6. Learned Labour Court-cum-Industrial Tribunal, Kangra at
Dharamshala, H.P., on the basis of pleadings before it, formulated the
following issues for the purpose of determination:
“1. Whether termination of services of Petitioner by the Respondent
during March, 2001 is/was illegal and unjustified as alleged ? OPP.
2. If issue No.1 is proved in affirmative, to what service benefits the
Petitioner is entitled to ? OPP.
3. Whether the Claim Petition is not maintainable in the present form as
alleged ? OPR.
4. Whether the Claim Petition is bad on ground of delay and latches as
alleged ? OPR.
5. Relief”
7. The issues so framed were decided by learned Labour Court as under:
“Issue No. 1: Decided accordingly.
Issue No. 2: Decided accordingly.
Issue No. 3: No.
Issue No. 4: No.
Relief: Petition is partly allowed awarding lump sum Compensation of `25,000
per operative part of the award”.
8. It was held by learned Labour Court while answering the reference
Petition that it was an admitted case of the parties that services of the
Petitioner were engaged as a Daily Wage Electrician in the month of
September, 1999 and admittedly, his services were terminated by the
Respondents w.e.f. 31.1.2002 after issuance of notice which was on record
as Ext.RW1/C. Findings have also been returned to the effect that in none of
the Calendar year, the Petitioner had completed 240 days. Learned Tribunal
thereafter went on to hold that as per Seniority List Ext.PW1/C, Shri Sham
Lal was appointed by the Respondent-Department in the month of October,
1999 on Daily Wage basis, whereas the services of S/Sh. Murari Lal and
Nikka Ram were engaged on 1.12.1999. Similarly, services of Shri Baldev
Singh were engaged in the month of May, 2000. Learned Court further held
that though there was a note given on Ext.PW1/C that the services of S/Sh.

Labour Law Notes / January-2021

January 2021 Harish Kumar v. State of Himachal Pradesh 215
(H.P.) (Biren Vaishnav, J.)
Murari Lal and Nikka Ram were retained in terms of the Order passed by
learned Himachal Pradesh Administrative Tribunal, yet it remained a fact
that both of them were junior to the Petitioner as their initial dates of
appointments were 1.12.1999. On these basis, learned Court held that there
was violation of principal of ‘Last Come First Go’ as juniors were retained
by the Respondents-Department while terminating the services of the
Petitioner which amounted to violation of provisions of Section 25-G of the
Industrial Disputes Act. Learned Tribunal thereafter went on to hold that in
view of the law declared by Hon’ble Supreme Court, in such like cases
where the Workman had raised Industrial Dispute belatedly, lump sum
Compensation of `25,000 would be appropriate relief to the Petitioner.
Accordingly, learned Labour Court-cum-Industrial Tribunal, Kangra at
Dharamshala, H.P. passed an award holding the Petitioner to be entitled to
lump sum Compensation of `25,000 with Interest at the rate of 9% per
annum from the date of award till its realization.
9. Feeling aggrieved, the Petitioner has filed this Writ Petition.
10. Learned Counsel for the Petitioner has argued that the Award passed
by learned Tribunal is not sustainable in the eyes of law as the learned
Tribunal was erred in not ordering the reinstatement of the services of
Petitioner when a positive finding was returned to the effect that while
terminating the services of the Petitioner, persons junior to him were
retained. He has further argued that the age of the petitioner referred to in the
award as 52 years is incorrect as he was 42 years old at the relevant time and
this error which has kept into the award has also led to the learned Labour
Court, holding that the Petitioner was not entitled for regularization. No
other point was urged.
11. On the other hand, learned Additional Advocate General has
submitted that there is no infirmity with the award which has been passed by
learned Tribunal, for the reasons that as the Petitioner was terminated as far
back as in the month of March, 2001, the award on lump sum Compensation
by the learned Tribunal was reasonable relief and further the factum of the
age of the Petitioner being mentioned as 52 years in the award, has also no
material affect on the award, because after referring to the age of the
Petitioner in the award, all that has been observed by the learned Labour
Court is that the Petitioner has got sufficient spell of life to work and earn his
livelihood. He has prayed that as there is no merit in the Petition, the same
be dismissed.
12. I have heard learned Counsel for the parties and have gone through
the Award passed by learned Labour Court-cum-Industrial Tribunal, Kangra
at Dharamshala, H.P.
13. There is not much dispute as far as the factum of the Petitioner having
been engaged in September 1999 and thereafter being terminated in the

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216 LABOUR LAW NOTES 2021 (1) LLN

month of March, 2001 as a Lineman is concerned. There is also not much

dispute with regard to the factum of the Petitioner having not completed 240
days in either of the Calendar year for the period he was engaged on daily
wage basis. As learned Tribunal has held that termination of the Petitioner
was in violation of Section 25-G of the Industrial Disputes Act and the same
has not been assailed by the Employer, therefore, this part of the finding
returned by learned Tribunal has attained finality. Now, the Court is only
concerned with the grievance of the Petitioner as to whether learned Tribunal
was erred in not ordering reinstatement of the Petitioner and by granting an
amount of `25,000 as Compensation.
14. In my considered view, taking a holistic view of the facts involved in
this Petition, the Award passed by learned Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P., vide which it has awarded lump sum
Compensation of `25,000 in favour of the Petitioner cannot be faulted with.
This, I say for the reason that after the termination of his services in the year
2001, though the Petitioner initially filed an Original Application before
learned Himachal Pradesh Administrative Tribunal in the 2003, but after the
said Original Application was dismissed by learned Tribunal for want of
jurisdiction on 20.7.2004, till the year 2015, no steps were taken by the
Petitioner to raise any Industrial Dispute. Even in the year 2015, he
approached this Court by way of a Writ Petition, which stood disposed of by
the Court in terms of the order which already stands enumerated hereinabove.
It is, thereafter, that Reference was made to the learned Labour Court.
15. In this background, learned Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P. has prudently held that the Petitioner was not
entitled for regularization and the only relief which could have been given to
him was of granting lump sum Compensation. This Court cannot shut its
eyes to the fact that the Petitioner remained a mute spectator as between the
years 2004 and 2015 and for this act of omission of his, he cannot be
rewarded by ordering his reinstatement. Now, coming to the factum of
`25,000 having been awarded as Compensation, in my considered view, the
amount so awarded by learned Tribunal is also reasonable, for the reason
that the services of the Petitioner were engaged only from the month of
September, 1999 to March, 2001 and during this period, in neither of the
Calendar year, he had completed 240 days of service. That being the case,
the Compensation awarded by the learned Tribunal is reasonable because it
is inconsonance with the period of service which was rendered by the
Petitioner with the Respondents-Department on Daily Wage basis.
16. Accordingly, in view of the observations made hereinabove, as this
Court does not finds any merit in this Petition, the same is dismissed.
Pending miscellaneous application, if any, stand dismissed. Interim Order, if
any, also stands vacated.
  

Labour Law Notes / January-2021

January 2021 Heavy Engineering Corporation Ltd. v. Union of India 217
(Jhar.) (Dr. S.N. Pathak, J.)
2021 (1) LLN 217 (Jhar.)
IN THE HIGH COURT OF JHARKHAND
Dr. S.N. Pathak, J.
W.P.(L) No.5431 of 2019
11.11.2020
Heavy Engineering Corporation Ltd., through its Chairman-cum-Managing Director,
Registered Office at Plant Plaza Road, Dhurwa, Ranchi .....Petitioner
Vs.
Union of India, through Deputy Chief Labour Commissioner (Central),
Dhanbad and others .....Respondents
PAYMENT OF GRATUITY ACT 1972 (39 of 1972), Sections 1(3) &
2(e) — FACTORIES ACT, 1948 (63 of 1948), Section 2(1) —
PAYMENT OF GRATUITY RULES, 1972, Rule 10(1) — CONTRACT
LABOUR (REGULATION AND ABOLITION) ACT, 1970 (37 of 1970)
— Application of Act — ‘Employee’ — Definition — ‘Worker’ —
Definition — Application to Controlling Authority for direction —
Entitlement of Contract Workers to Gratuity — ‘Sham Contracts’ —
Petitioners engaged Contractors through Manpower Samities —
Respondent-3 was Workman of Samiti run by Respondent-4 —
Respondent-3 superannuated on 31.3.2012 — Approached Petitioner
and Respondent-4 for payment of Gratuity which was not paid — Filed
application before Controlling Authority which was dismissed — On
Appeal, Appellate Authority ordered payment of Gratuity to
Respondent 3 with 10% Interest from 1.4.2012 — On challenge, held,
Section 1(3) of Act not certainly excludes Contractor’s establishment
from purview of Gratuity Act and Contract Labour covered under Act
— Under Gratuity Act, Employee and under Factories Act, Workers
include a Contract Workers — Contention that Respondent was not
direct Employee of Petitioner-Company and they are not liable to pay
Gratuity as there was no Employer-Employee relationship, not tenable
— Further, PF contribution of Workmen being deposited and Register
of Records maintained and superannuated at 60 years of age though
Contract Labour has no Retirement age as per Contract Labour (R&A)
Act, 1970 — Facts sufficient to hold that Principal Employer is
Petitioner and Contract between Society and Principal Employer is just
a paper arrangement — No illegality or infirmity in impugned Order —
Writ Petition dismissed being meritless — Petitioner-Management
directed to pay Gratuity as determined by Appellate Authority within
eight weeks — Pending I.A. disposed of accordingly. (Paras 8 to 18)

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218 LABOUR LAW NOTES 2021 (1) LLN

CASES REFERRED
Cominco Binani Zinc, Ltd. v. Pappachan, 1989 (1) LLN 474 (Ker.) .........................................3
Cummins (I) Ltd. v. I.C. Services, 2017 (3) Mh.LJ 294 ............................................................3
Indian Petrochemical Corporation Ltd. v. Shramik Sena, 2001 (1) LLN 924 (SC) ..................11
Managing Director, Hassan Cooperative Milk Producer’s Society Union Limited v.
Assistant Regional Director, Employees’ State Insurance Corporation, 2010 (11) SCC
537 ......................................................................................................................................3
Mangalore Ganesh Beedi Workers v. Union of India, AIR 1974 SC 1832 ..............................12
Pepsico India Holding (P) Ltd. v. Grocery Market & Shops Board, 2016 (2) LLN 304 (SC) ...... 13
Mukesh Kumar, Advocate for Petitioner.
Nitu Sinha, Advocate for Respondent Nos.1 & 2; Pradeep Kumar Prasad, Advocate for
Respondent No.3; Arvind Kumar Singh, Advocate for Respondent No.4.
Finding — W.P. dismissed.
JUDGMENT
1. The Petitioner has approached this Court for quashing/setting aside the
Order, dated 11.7.2019 (Annexure-5) passed by the Deputy Chief Labour
Commissioner (Central), Dhanbad (Respondent No.1), who is an Appellate
Authority under the Payment of Gratuity Act, 1972, whereby and
whereunder a direction was issued upon the Petitioner to pay the Gratuity to
the Respondent No.3.
2. The case of the Petitioner lies in a narrow compass. The Petitioner,
M/s. Heavy Engineering Corporation Limited (hereinafter referred to as
‘HEC’) is a Company registered under Section 617 of the Indian Companies
Act, 1956 and is a Government of India Undertaking. The Petitioner-HEC in
order to get its work done, engages different Contractors through various
Manpower Samities. One such Samiti is the present one operated by the
Respondent No.4. The Contractors of the said Samiti keep on changing from
time to time after holding internal elections, but the name and style of the
Samiti remains the same. The Respondent No.3, (Pandu Topno) was a
Workman of one of such Samities run by Respondent No.4. The Respondent
No.3 joined the services as Fitter under Respondent No.4 and after attaining
the age of 60 years, he superannuated on 31.3.2012. Thereafter, he
approached the Petitioner as well as Respondent No.4 for payment of
gratuity, but no heed was paid. Aggrieved by the same, he filed an
application on 30.4.2013 before the Controlling Authority in Form-N under
Rule 10(1) of the Payment of Gratuity Rules, 1972 for a direction upon the
Petitioner-HEC and Respondent No.4 for determination of amount payable
towards gratuity and making payment thereof to him and vide Order, dated
22.9.2017, the Controlling Authority rejected the claim of the Respondent
No.3. Aggrieved by the same, he preferred an Appeal before the Deputy
Chief Labour Commissioner (Central), Dhanbad, and vide Order, dated
11.7.2019, Appeal of the Respondent No.3 was allowed and a direction was

Labour Law Notes / January-2021

January 2021 Heavy Engineering Corporation Ltd. v. Union of India 219
(Jhar.) (Dr. S.N. Pathak, J.)
issued upon the Petitioner-HEC to pay the Gratuity to the Respondent No.3
along with 10% Interest from 1.4.2012 till date of payment. Aggrieved by
the impugned Appellate Order, the Petitioner-HEC has been constrained to
knock the door of this Court, challenging the Appellate Order, dated
11.7.2019.
3. Mr. Mukesh Kumar, learned Counsel for the Petitioner-HEC assailed
the impugned Order on the ground that there is no Employer-Employee
relationship between the Petitioner and Respondent No.3 as he was
appointed/engaged by the Contractor i.e. Respondent No.4 for carrying out
the work of Petitioner-HEC and as such, the Petitioner is not responsible for
payment of gratuity. He further submitted that Appellate Authority also
failed to consider the evidences produced by Respondent No.3 wherein, he
had stated that he was appointed on 1.11.1983 in HMBP Unit under M/s.
Ghasis Oraon, Contractor and also worked under different Contractors in the
establishment of Petitioner-HEC, but he was not paid his Gratuity by his
Employers i.e. Contractors and as such, Employer-Employee relationship
between the Petitioner and Respondent No.3 does not exist. He further
submitted that since the Respondent No.3 was appointed by the Contractor
on contractual basis and there was no control and supervision of the
Petitioner-HEC over the Respondent No.3-Workman, the Petitioner-HEC
cannot be held liable to pay the gratuity amount to the Workman appointed
by the Contractor/s. Learned Counsel further submitted that the Workman
did not produce any chit of paper/document in support of his claim or even
Appointment Letter issued by the Petitioner-HEC Management. Learned
Counsel places a Circular issued by Addl. Central P.F. Commissioner-II
(CAIU), wherein it is stipulated that a large number of Employees were
being hired on Contract Basis by various Principal Employers including
Government Departments, PSUs, etc. for their business activities. Those
Contract Employees are not being provided Social Security benefits under
the EPF which they are entitled too and a clear cut direction was given to all
PSUs to ensure compliance thereof. As the Respondent No.4 has already
been paid EPF contribution, which was being deducted by the HEC Trust
and as such, payment of admissible Gratuity is the responsibility of the
Contractor by whom the Respondent No.3 was engaged. To buttress his
argument, learned Counsel for the Petitioner placed heavy reliance on the
following Judgments of different Hon’ble High Courts as well as Hon’ble
Apex Court:
I. Cummins (I) Ltd. v. I.C. Services, 2017 (3) Mh.LJ 294;
II. Cominco Binani Zinc, Ltd. v. Pappachan, 1989 (1) LLN 474 (Ker.) :
1989 (1) KLT 6;

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220 LABOUR LAW NOTES 2021 (1) LLN

III. Managing Director, Hassan Cooperative Milk Producer’s Society

Union Limited v. Assistant Regional Director, Employees’ State
Insurance Corporation, 2010 (11) SCC 537.
4. Per contra Counter-Affidavits have been filed.
5. Mr. Pradeep Kumar Prasad, learned Counsel for the Respondent No.3
vehemently opposed the contention of the learned Counsel for the Petitioner
and submitted that there is no illegality or infirmity in the impugned
Appellate Order. He further submitted that the payment of Gratuity Act says
that ‘Employee means any person save and except apprentice’. The
Respondent No.3 worked under the supervision and control of the Principal
Employer i.e. Petitioner-HEC as the registers and records were being
maintained by the HEC Ltd. and also the amount of Provident Fund was
being deposited in Provident Fund Account of HEC Ltd. He further
submitted that the Respondent No.3 retired from services after attaining the
age of superannuation as per Rule of HEC Ltd.-Petitioner. He further
submitted that the certificate issued by the Samiti proves that the Respondent
No.3 had worked from 1.11.1983 to 31.3.2013.
6. Mr. Arvind Kumar Singh, learned Counsel appeared on behalf of the
Respondent No.4 and submitted that Respondent No.4 is only an
instrumentality of the Writ Petitioner and all the liability to pay the Wages,
P.F., Gratuity etc. are with the Writ Petitioner. He further submitted that
Respondent No.3 was not the Workman of the answering Respondent rather
he was a person, deployed by the Samiti to work under the Writ Petitioner-
HEC Ltd. The Writ Petitioner-HEC Ltd. by treating these Workmen as its
Employee extends them a number of benefits such as allotment of quarter
etc. He further submitted that the bills of Wages are prepared by the Writ
Petitioner-HEC Management and after deducting the amounts against PF,
ESI and HRA, the same is transferred into the account of Samiti/Contractor.
The Samiti/Contractor in its turn pays the entire salary/Wages to the
concerned Workman as per the bills prepared by the Writ Petitioner-
Management. He lastly submitted that all the liability against PF, Gratuity
etc., lies with the Writ Petitioner-HEC, the Respondent No.4 only gets 2.75
to 3.75 percent of the wages paid to the labour/Workmen from the Petitioner
and this payment are used by the Samiti for its proper functioning and as
such, there is no illegality or infirmity in the impugned Order.
7. Mrs. Nitu Sinha, learned Counsel appearing on behalf of the Union of
India supported the Order passed by the Appellate Authority.
8. Be that as it may, having gone through the rival submissions of the
parties and on perusal of the records, it appears that the Respondent No.3
namely, Pandu Topno admittedly retired on attaining the age of

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January 2021 Heavy Engineering Corporation Ltd. v. Union of India 221
(Jhar.) (Dr. S.N. Pathak, J.)
superannuation from the services of Petitioner-Management. The questions
involved in this Writ application is whether the Respondent No.3 is
Employee of the Petitioner-Management or the man of the Contractor and
whether the Respondent No.3 is entitled for payment of Gratuity by the
Petitioner-Management or by the Contractor/Samiti. Before assigning cogent
reasons for payment of gratuity, it would be proper to look into the relevant
provisions of Gratuity Act, which reads as follows:
Section 1(3) of the Payment of Gratuity Act, 1972: it shall apply to
(a) every factory, mine, oilfield, plantation, port and Railway Company.
(b) Every shop or establishment within the meaning of any law for the time
being in force in relation to shops and establishments in a State, in which ten or
more persons are employed, or were employed, on any of the preceding twelve
months;
(c) Such other establishments or class of establishments, in which ten or more
Employees are employed or were employed, on any day of the preceding
twelve months, as the Central Government may, by Notification, specify in this
behalf.
The above definition of establishment, does not, certainly excludes the
Contractor’s establishment from the purview of payment of Gratuity Act,
1972. So the Contract Labourers are also covered under the Act.
9. So far as the contention the learned Counsel for the petitioner-HEC
that there was no direct relationship of Employer and Employee between the
contract worker and the principal Employer is concerned, the Section 2(e) of
Payment of Gratuity Act, 1972 clarify the issue, which reads as under:
‘Employee’ means any person (other than apprentice) employed on wages in any
establishment, factory, Mine, Oilfield, Plantation, Port, Railway Company or
shop to do any skilled, semi skilled or unskilled, manual supervisory, technical
or clerical work, whether the terms of such employment are express or implied,
and whether or not such person is employed in a managerial or administrative
capacity, but does not include any such person, who holds a post under the
Central Government or a State Government and is governed by any act or by any
rules providing for payment of gratuity.
10. Further, the definition of ‘Worker’ as defined under Section 2(1) of
Factories Act, 1948 reads as follows:
‘Worker’ means a person employed, directly or by or through any agency
(including a Contractor) [emphasis supplied by me] with or without the
knowledge of the principal Employer, whether for remuneration or not, in any
manufacturing process or in cleaning any part of the machinery or premises used
for a manufacturing process, or in any other kind of work incidental to, or
connected with, the manufacturing process, or the subject of the manufacturing
process but does not include any member of the armed forces of the Union.

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222 LABOUR LAW NOTES 2021 (1) LLN

The above definition of ‘Worker’ even includes a Contract Worker, who is a

Worker for the purpose and also under Factories Act, 1948.
11. The Hon’ble Apex Court in case of Indian Petrochemical
Corporation Ltd. v. Shramik Sena, 2001 (1) LLN 924 (SC) : 1999 (83) FLR
74, has held that ‘the Contract Workers working in the canteen of the factory
would be the Employees/Workers of the Principal Employer for the purpose
of Factories Act, 1948.
12. Further, the Hon’ble Apex Court in case of Mangalore Ganesh Beedi
Workers & ors. v. Union of India, AIR 1974 SC 1832, has held thus:
“In cases where the manufacturer or Trade Mark holder himself employs labour
there is direct relationship of master and servant and, therefore, liability is
attracted by reason of that relationship. There cannot be any question of
unreasonableness. In the second category, the manufacturer or trademark holder
engaged Contract Labour through a Contractor and he becomes the Principal
Employer. Though such labour may be engaged by Contractor with or without
the knowledge of the manufacturer or Trademark holder, this Contract Labour is
engaged for the principal Employer, who happens to be the Trade Mark holder
or the manufacturer. The liability arises by reason of Contract Labour engaged
by or on behalf of the principal Employer....”
13. The Hon’ble Apex Court in case of Pepsico India Holding (P) Ltd. v.
Grocery Market & Shops Board, 2016 (2) LLN 304 (SC) : 2016 (4) SCC
493, on the point of contractual labourers, who were employed through
Contractors, are entitled for terminal benefits as such as provident fund and
gratuity has observed that:
“19. Taking a cue from the Objects and Reasons for this piece of social
legislation and from the well-known doctrine of construing such legislation in an
expansive manner to further the object of welfare legislation of the kind
mentioned hereinabove, and not to stultify such object, we hold that the Bombay
High Court cannot be faulted in its reasoning. It must also not be forgotten that
the object of the 1970 Scheme is not only to provide work to both Employer and
Employee but also to provide amenities and benefits to registered Workers.
These amenities and benefits are to be provided by the Board to Employees by
charging the Employer with a levy which cannot exceed 50% of the total wage
bill of the Employer without the prior approval of the State Government. We are
told that in the present case the levy amount is 41%, which is utilised not only to
look after the health of the Workers, but also to give them terminal benefits such
as provident fund and gratuity provided for by Clause 43 of the 1970 Scheme.
20. It was further submitted by Shri Cama that on a conjoint reading of the
definitions of “Employer”, “principal Employer” and “Worker” contained in
Sections 2(3), (7), (12), as the two societies are Contractors employing Contract
Labour for and on behalf of the Appellant Company’s purchasers, the Appellant
Company cannot be said to be the “principal Employer” who is liable to be
registered under the 1969 Act. We are afraid that this contention does not lie in

Labour Law Notes / January-2021

January 2021 Heavy Engineering Corporation Ltd. v. Union of India 223
(Jhar.) (Dr. S.N. Pathak, J.)
the mouth of the Appellant Company. By an application made for registration
under the 1969 Act, dated 11.10.1996, in Column 7, which reads as follows:
“7. Are you employing workers through Contractors ? If so, state the name of
the Contractors.”
the Company has specifically mentioned two cooperative societies and one other
Contractor thereby admitting that it actually employed about 30 Workers itself
through Contractors.
22. Similarly, in the Writ Petition filed before the High Court, the Appellant
Company’s own pleading in Para 8 is that the Appellant registered itself with
Respondent 2 Board under pressure of the Board believing that the Act and the
Scheme were applicable. It was granted Registration No.4516. Further, in
proceedings under the Act against the Company it admitted that it pleaded guilty
for not having registered itself. This being the state of facts before us, we cannot
characterise the State Government’s finding in its Order, dated 24.6.2008 as
even incorrect, let alone perverse. As pointed out above, in Para 6 of its Order,
the State Government specifically arrived at a finding that mathadi work was
carried out in the Company by two cooperative societies who had the work done
by employing Workers and got compensated by the Appellant Company. This
being the case, there is no factual foundation for Shri Cama’s argument that it is
the Appellant’s purchasers and not the Appellant-Company itself that is the
principal Employer under the Act.
23. One other contention of Shri Cama needs to be noticed. Shri Cama argued
before us that the 1969 Act being inconsistent with the Contract Labour
(Regulation and Abolition) Act, 1970 would be repugnant to the said Act and
therefore invalid under Article 254 of the Constitution. He candidly admitted
that no such ground had been raised or argued before the High Court, but asked
that the Supreme Court allow him to raise this plea as it is a pure question of
law. We are afraid that this is not possible for the reason that even if Shri Cama
were to be correct in his submission that the Central Parliamentary Act of 1970
would impliedly repeal the 1969 State Act, yet Section 30(1) of the said Act
provides that despite the provisions of the 1970 Act being allegedly inconsistent
with the 1969 State Act, yet if Contract Labour employed in an establishment are
entitled to benefits which are more favourable to them than those to which they
would be entitled under the 1970 Act, the Contract Labour shall continue to be
entitled to more favourable benefits, notwithstanding that they also receive
benefits in respect of other matters under the Central Parliamentary Act. This
being the case, it was incumbent upon the Writ Petitioner not only to take up the
plea of repugnancy and implied repeal but also to state as a fact that what the
Workmen would be entitled to under the 1969 State Act would not be as
beneficial as what they would be entitled to under the 1970 Central enactment.
This would then give the Respondent Board, in turn, an opportunity of either
admitting or denying this factual averment. There being no pleading to this effect
in the Writ Petition before the High Court, it is clear that it is not possible for us
to accede to Shri Cama’s request to go into the argument on repugnancy and
implied repeal.”
14. In view of the aforesaid discussion, the argument advanced by the
learned Counsel for the Petitioner-Management that the Respondent No.3

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224 LABOUR LAW NOTES 2021 (1) LLN

was not a direct Employee of the Company and as such, they are not liable to
pay the gratuity amount as there was no relationship of Employee and
Employer, is not accepted to this Court as there is certainly indirect
relationship of Employer and Employee between the Principal Employer and
the Contract Workers.
15. Further, the provident fund contributions of the Workmen were being
deposited in the PF Account of HEC Ltd. as also registers and records were
maintained by Petitioner-HEC Ltd. and Respondent No.3 has been
superannuated on attaining the age of 60 years though a Contract Labourer
has no retirement age according to the Contract Labour (R & A) Act, 1970,
these are the sufficient grounds for holding that the principal Employer of
the Respondent No.3 is Petitioner-HEC Ltd. and as such, the Contract
between the society and the principal Employer is just a paper arrangement.
16. As a cumulative effect of the aforesaid rules, Guidelines and judicial
pronouncement, this Court is in full agreement with impugned Appellate
Order, dated 11.7.2019. There is no illegality or infirmity in the impugned
Appellate Order. The contention of the learned Counsel for the Petitioner-
Management is not at all accepted to this Court and Judgment relied upon by
him does not come to his rescue as the same are based on different facts.
There is no merit in the instant case. Accordingly, the instant Writ Petition
stands dismissed.
17. As a result thereof, the Petitioner-Management is directed to pay the
gratuity amount and interest as determined by the Appellate Authority vide
its Order, dated 11.7.2019 to the Respondent No.3-Workman, within a
period of eight weeks’ from the date of receipt of a copy of this order.
18. In view of the disposal of the Writ Petition, pending I.A., if any, also
stands disposed of.
19. No order as to Costs.
  

Labour Law Notes / January-2021

January 2021 Private Hospital & Nursing Homes Association v. Secretary, 225
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
2021 (1) LLN 225 (DB) (Kar.)
IN THE HIGH COURT OF KARNATAKA
Abhay Shreeniwas Oka, C.J. & Mohammad Nawaz, J.
W.A. Nos.1611, 2282-2365, 1272, 1481-1519, 2761-2769, 1520, 1540-1566,
1567-1601, 1602-1604, 1612-1618, 1619, 2744, 1620, 1621, 1623-1628,
1629-1653, 1679-1680, 1681-1682, 1704, 1765-1792, 1794-1825, 1846,
1872-2214, 2266-2267, 2272, 2918-2972, 2280-2281, 2465, 2928-2937,
2466, 2467, 2468, 2546, 2547, 2656-2659, 2667, 2683, 2745, 2778, 2913-
2915, 2779, 2898-2900, 2814, 2823-2831, 2909, 2910 & 2911/2019 (L-MW)
13.4.2020
W.A. Nos.1611 of 2019 & 2282-2365 of 2019:
Private Hospital & Nursing Homes Association, Phana, KMC 2, 1st Floor,
Vidyabhavana, 16/6, Miller Tankbund Road, Vasanth Nagar, Bangalore-560 052, rep. by its
President/Now Honorary Secretary, Dr. Ravindra and others. …..Appellants
Vs.
Secretary, Labour Department, Government of Karnataka, Vikasa Soudha,
Bengaluru-560 001 and others …..Respondents
MINIMUM WAGES ACT, 1948 (11 of 1948), Sections 2(b), 2(h), 3, 4, 5
& 5(2) r/w 5(1)(b) — ‘Appropriate Government’ — ‘Wages’ —
Definitions — Fixation of minimum rates of Wages — Minimum Rates
of Wages — Procedure for fixing and revising Minimum Wages — State
Government issued Notification in respect of 37 Sectors of employment
in State fixing Minimum Wages — Apart, three final Notifications
withdrawn by State Government in respect of Textile Industry,
Spinning Mill Industry, Cloth Dyeing and Printing Industry — One
Draft Notification was also withdrawn in respect of Tailoring Industry
— Union filed W.P. No.18621/2018 challenging withdrawal of four
Notifications — W.P. was dismissed and Union filed W.A. No.1520/2019
against dismissal of W.P. — Remaining W.Ps. filed by Employers
challenging particular Notifications — Certain parts of impugned
Notifications quashed by Single Judge without disturbing rates of
Minimum Wages fixed thereunder — In W.P. filed by Union, direction
was issued to State Government to accomplish fixation/revision of
Minimum Wages in respect of Sectors under impugned Notifications
within six months vide Order, dated 29th March 2019 — Present
Appeals arise out of Order, dated 29th March 2019 — Held, as per
Clause (b) of sub-section (1) of Section 3, Minimum Wages required to
be revised periodically which can be maximum five years and in case of
non-revision, State Government empowered to do so — Appropriate
Government has two options under Section 5 for fixation or revision of
Wages — Under Clause (a), option is to appoint a Committee to hold

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226 LABOUR LAW NOTES 2021 (1) LLN

Inquiry and advise Government about fixation or Revision — Under

Clause (b) it has to publish proposal of fixation/revision for information
of persons likely to be affected — There is power to revise Minimum
Wages even by reducing same by exercising power under Section 5(2) of
1948 Act — However, power to revise or review cannot be exercised by
withdrawing Final Notifications — Withdrawal of Notifications cannot
be termed a step in aid of revision of rates of Wages — Notifications
vested a right in Employees entitling them to get minimum fixed under
Notifications — Hence, vested rights to get Wages fixed under three
Notifications could not be taken away without revising rates under
provisions of Section 3 r/w Section 5 of 1948 Act — However, situation
regarding fourth withdrawn Notification is different as said Notification
not fixed rates but it was only proposal to State Government for fixing
minimum rates — Exercise of power by Appropriate Government in
fixing rates of Minimum Wages is neither Quasi-Judicial nor
Administrative but legislature delegated power to Appropriate
Government to fix Minimum Wages which is legislative function —
Contention that non-adopting of option under Clause (a) of Section 5(1)
is discriminatory, not tenable as Statute provides for two options and
merely because one option is exercised, it cannot be said to be
discriminatory as held in Chandra Bhavan Boarding and Lodging v State
of Mysore, AIR 1970 SC 2042 — Contention regarding improper
constitution of Advisory Board not acceptable as no impropriety found
therein — In view of matter, impugned Order relating to W.A.
1520/2019 set aside and W.P. 18621/2018 allowed — Impugned
Notification, dated 22nd March 2018 set aside — Three Final
Notifications, dated 30th December 2017 and Preliminary Notification,
dated 22nd February 2018 stand revived — State Government directed
to take further steps on basis of Draft Notification, dated 22nd February
2018 as per Section 5 of 1948 Act — Aggrieved parties at liberty to
challenge three revived Notifications in accordance with law — Open to
State to undertake revision of Minimum Wages fixed under three
Notifications — Regarding W.As. of Employers, impugned Judgment
stands confirmed with modification that entire Clause 3 of impugned
Notification stand set aside — Appeal partly allowed accordingly —
Judgment to remain in abeyance for twelve weeks to enable aggrieved
parties to approach higher Court. (Paras 37 to 39, 62, 64, 65, 67, 79 - 81)
GENERAL CLAUSES ACT, 1897 (10 of 1897), Section 21 — Power to
issue, to include power to add, to amend, vary or rescind Notifications,
Orders, Rules or Bye-Law — Held, Section 21 will apply only when in a
Statute, there is no specific provision providing for what is provided in
Section 21 — Exception to exercise power under Section 21 of
rescinding Notifications or Orders shall be in cases, where Order passed
under a particular, Statute already given effect and Third party
interests created — Specific powers conferred upon to review or revise

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 227
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
rates of Wages — For such revision or review recourse to Section 21
cannot be taken — Procedure prescribed under Section 5 of 1948 Act
has to be followed. (Paras 53 to 60 & 81)
CASES REFERRED
Airfreight Ltd. v. State of Karnataka, 1999 (4) LLN 1 (SC)..................................... 7, 11, 84, 85
Arbuda Bhuvan Tea Shop v. State of Maharashtra, 1991 (2) LLN 885 (Bom.)........................20
Association of Planters of Kerala v. State, 1996 (1) LLN 403 (Ker)........................................47
Bhikusa Yamasa Kshatriya v. Sangamner Akola Taluka Bidi Kamgar Union, AIR 1963 SC
806 ..............................................................................................................................12, 86
Bijay Cotton Mills Ltd. v. State of Ajmer, AIR 1955 SC 33 ..........................................9, 19, 43
Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC 2042......
............................................................................................................. 9, 21, 23, 44, 65, 86
Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25 ...............................................20, 67
Karnataka Planters’ Association v. State of Karnataka, ILR 1986 Kar. 1787.........................9.2
L & T Komatsu Ltd. v. All India Trade Union Congress, ILR 2012 Kar. 2411...........27, 55, 59
Mangalore Ganesh Beedi & Allied Beedi Factories Workers Association v. State of
Karnataka, MANU/KA/0326/2003............................................................. 19, 23, 62, 77, 91
Ministry of Labour and Rehabilitation v. Tiffin’s Barytes Asbestos & Paints Ltd., 1985
(3) SCC 594.................................................................................................... 9.1, 19, 48, 67
People’s Union for Democratic Rights v. Union of India, 1982 (2) LLN 410 (SC) .................46
Shivashakthi Sugars Ltd. v. Shree Renuka Sugars, 2017 (7) SCC 729 ....................................12
Standard Vacuum Refining Co. of India v. Its Workmen, AIR 1961 SC 895 ....................19, 42
State of Uttar Pradesh v. Babu Ram Upadhyay, 1971 SCR (2) 679........................................9.2
Subhash Chandra v. Delhi Subordinate Services, 2009 (15) SCC 458 ......................................9
Unichoyi (U) v. State of Kerala, AIR 1962 SC 12 ........................................... 19, 22, 30, 33, 45
Workmen, rep. by Secretary v. Reptakos Brett & Co. Ltd., 1991 (2) LLN 1166 (SC) .................
................................................................................................................. 7.1, 19, 30, 42, 62
Y.A. Mamarde v. Authority under Minimum Wages Act, Nagpur, 1972 (2) SCC 108 ...........33
S.N. Murthy, Senior Counsel for Somashekar, Naganand, Senior Counsel for C.K.
Subramanya, K. Ramachandran for M.R.C. Ravi, S.S. Vasuki for B.C. Prabhakar, Vilas
Ranganath Datar, Praveen Kumar Hiremath, Santhosh Narayan S., Shridhar Prabhu,
Nikhilesh Rao M., Vikram G. & Kesthur N. Chendra Shekher, Advocates for
Appellants.
Tharanath Poojari, AGA, K.B. Naryana Swamy, K. Subba Rao, Senior Counsel, K.N.
Satheesh & Maithreyi Krishnan, Advocates for Respondents.
Finding — W.As. by Employers partly allowed — W.A. 1520 allowed.
Prayer : W.A. Nos.1611 of 2019 & 2282-2365/2019: These Writ Appeals are filed under Section 4 of the
Karnataka High Court Act praying to set aside the portion of the Order, dated 29.3.2019 of the learned
Single Judge insofar as not interfering with other legal aspects and quantum of Minimum Wages fixed in
the impugned Notification bearing No.KAA E 125 LWA 2015, dated 6.1.2017 (Annexure ‘B’ in WP) of
the Respondent No.1 passed in following Writ Petitions Nos.12203 & 12204/2017, 12206-12209/2014,
12215, 12218, 12221, 12222, 12226, 12227, 12229, 12231-12233, 12236, 12238, 12239, 12253, 12254,
12256, 12258, 12262, 12265-12267, 12275, 12277, 12278, 12281-12285, 12287-12290, 12294-12298,
12304, 12305, 12307-12314, 12317, 12324, 12327-12331, 12333-12335, 12360, 12374, 12376-12378,
12380, 12384, 12386, 12387, 13841, 13844, 13845, 26051, 26052, 26054, 26057, 26059, 26061, 26063,
26072, 26073, 26079 & 9211 of 2017.

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228 LABOUR LAW NOTES 2021 (1) LLN

JUDGMENT
Abhay Shreeniwas Oka, C.J.
1. These Appeals take exception to the Judgment and Order, dated 29th
March 2019 by which, the learned Single Judge decided Writ Petition
Nos.8388-8417/2017 and several other connected Writ Petitions.
2. The Writ Petitions arose out of the exercise of powers under Section 5
of the Minimum Wages Act, 1948 (for short “the said Act of 1948”). Under
Section 3 of the said Act, the Appropriate Government is required to fix
minimum rates of wages payable to the Employees, employed in any
employments specified in Part-I or Part-II of the Schedule to the said Act of
1948. Section 5 of the said Act of 1948 lays down the procedure for fixing
and revising Minimum Wages.
3. In the Writ Petitions filed before the learned Single Judge, which were
decided by the impugned Judgment and Order, there was a challenge by the
Employers to the Notifications issued under sub-section (2) read with Clause
(b) of sub-section (1) of Section 5 of the said Act of 1948 by the appropriate
Government, which in this case is the State Government. These were
Notifications issued in respect of thirty seven (37) sectors of employment in
the State in exercise of powers under sub-section (2) read with Clause (b) of
sub-section (1) of Section 5 of the said Act of 1948. The rates of Minimum
Wages were fixed by the said Notifications in respect of various categories
of employments. Apart from that, there were three final Notifications issued
under sub-section (2) of Section-5 which were withdrawn by the State
Government. One Draft Notification issued under Clause (b) of sub-section
(1) of Section 5 of the said Act of 1948 was also withdrawn. Those four
Notifications were withdrawn on 22nd March 2018. The three final
Notifications withdrawn were in respect of Textile (silk) industry, Spinning
Mills Industry, Cloth Dyeing and Printing Industry respectively which were
issued on 30th December 2017. The withdrawn Draft Notification, dated
22nd February 2018 was in respect of Tailoring Industry. W.P. No.18621 of
2018 was filed by a Union for challenging the withdrawal of the said four
Notifications. The said Writ Petition was rejected by the impugned Judgment
and Order. Writ Appeal No.1520/2019 filed by the Union of Employees
arises out of said Writ Petition. The rest of the Writ Petitions were filed by
the Employers and/or their associations for challenging particular
Notifications out of the said 37 Notifications. There were diverse challenges
in the Writ Petitions which were considered by the learned Single Judge by a
detailed Judgment and Order which is impugned in this group of Appeals.
While dealing with the challenge to the Notifications by the Employers,
certain parts of the impugned Minimum Wages Notifications were quashed
by the learned Single Judge without disturbing the rates of Minimum Wages
fixed there under. As far as the Writ Petition filed by the Union of

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 229
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Employees is concerned, as stated earlier, the learned Single Judge has
declined to interfere with the action of the Government of withdrawing the
four Notifications. However, a direction was issued to the State Government
to accomplish the fixation/revision of Minimum Wages in respect of the
sectors which were subject matter of the four withdrawn Notifications within
the outer limit of six months. For the sake of convenience, we are
reproducing the operative portion of the impugned Judgment and Order,
dated 29th March 2019 which reads thus:
“For the reasons stated above, these Writ Petitions filed by the Employers are
allowed in part; a Writ of Certiorari issues quashing only the following parts of
the impugned Minimum Wages Notifications;
(a) That part which directs payment of Service Seniority Allowance at the rate of
1% of the Minimum Wages for each completed year of service or otherwise, to
the Employees who have put in a service of ten or more years;
(b) that part which directs the Employers to pay and to continue to pay the
current wages that are above the notified Minimum Wages subject to the rider
that the downward revision, if any, shall not be below the Minimum Wages
prescribed under these Notifications;
(c) that part which directs payment of Minimum Wages to the supervisory staff
who do not prima facie answer the definition of ‘Employee’ under Section 2(e)
of the Minimum Wages Act, 1948, subject to the condition that the individual
claim, if any, of such Employees may be processed under Section 20 of the Act,
regardless of their designation; and
(d) that part which directs the Employer to constitute and appoint the Competent
Officer and the Appellate Authority for adjudication of Claims/Disputes relating
to payment of Minimum Wages.
The Interim Orders granted earlier stand dissolved. The amount of Wages that
remain unpaid because of the Interim Orders shall be paid by the Petitioners/
Employers within a period of eight weeks with interest at the rate of 6% p.a.
from the date from which the same was otherwise payable.
The Writ Petitions filed by the Employers/Trade Unions challenging withdrawal
of three Minimum Wage Notifications and one Draft Notification are disposed
off without interference; however, a Writ of Mandamus issues to the official
Respondents to accomplish the fixation/revision of Minimum Wages in respect
of the subject sectors of employment within an outer limit of six months by
issuing the Minimum Wages Notifications with retrospective effect from the
respective dates from which the Minimum Wages would have become payable,
had the impugned withdrawal Notifications were not issued.
No costs.”
4. Before we go to the submissions made by the learned Counsel
representing the parties, it will be necessary to make a reference to some of
the Appeals which are the part of this group:

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230 LABOUR LAW NOTES 2021 (1) LLN

(i) Writ Appeal No.1611/2019 is filed by the Private Hospital and

Nursing Homes Association which was the Petitioner in various Writ
Petitions. There are other Appellants. The First Appellant is the said
association of the Hospitals and Nursing Homes. The Appellants were
aggrieved by the impugned Notification by which the Minimum Wages
were fixed for the Employees working in the Hospitals and Nursing
Homes. Therefore, they had filed a Writ Petition before the learned
Single Judge.
(ii) Writ Appeal No.1272/2019 is filed by the Petitioner-Employer who is
the manufacturer of writing instruments. The Appellant has challenged
the relevant Notification fixing the Minimum Wages by filing a Writ
Petition.
(iii) Writ Appeal Nos.1481 to 1519/2019 & 2761 to 2769/2019 have been
preferred by the Karnataka Employers’ Association and the other
Appellants who are the establishments under the Karnataka Shops and
Establishments Act, 1961. They had filed Writ Petitions for challenging
the Minimum Wages Notification applicable to the said establishments.
(iv) Writ Appeal No.1520/2019 is an Appeal preferred by the Union of
the Employees viz., All India Trade Union Congress (for short ‘the
Union’). The Union had filed a Writ Petition for challenging the
Notification, dated 22nd March 2018 by which three final Notifications,
dated 30th December 2017 in respect of Textile Manufacturing (Silk)
Industry, Spinning Mills Industry, Cloth Dyeing and printing industry
and one Draft Notification, dated 22nd February 2018 in respect of
tailoring industries, were withdrawn. By the impugned Judgment and
Order, the said petition has been dismissed.
(v) Writ Appeal Nos.1540 to 1566/2019 have been preferred by the
Karnataka Drugs and Pharmaceuticals Manufacturers Association and
others who had filed a Writ Petition for challenging the relevant
Minimum Wages Notification.
(vi) Writ Appeal Nos.1567 to 1601/2019 have been filed by the
Karnataka Employers’ Association and others. The other Appellants are
running Bakery and Engineering Industries, who had filed a Writ Petition
for quashing the relevant Minimum Wages Notification.
(vii) Writ Appeal Nos.1602 to 1604/2019 has been filed by the Board of
Management of an Educational Institution which had filed a Writ Petition
for challenging the relevant Minimum Wages Notification.
(viii) Writ Appeal Nos.1612 to 1618/2019 have been filed by the
Automobile Dealers/Industries who had filed Writ Petitions challenging
the relevant Notification, fixing Minimum Wages of the Employees of
Automobile Industries.

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 231
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
(ix) Writ Appeal Nos.1619/2019 & 2744/2019 have been filed by the
Rubber Industries. The Appellants had filed Writ Petitions challenging
the Minimum Wages Notification concerning Rubber Industry.
(x) Writ Appeal No.1620/2019 is filed by Akhila Karnataka Federation of
Petroleum Traders which represents the Petrol and Diesel Oil Pumps
Industries. The Appellant had challenged the relevant Minimum Wages
Notification by filing Writ Petitions before the learned Single Judge.
(xi) Writ Appeal No.1846/2019 has been filed by the Appellant which is
in the business of processing Granite slabs. Even the Appellant had filed
a Writ Petition before the learned Single Judge challenging the relevant
Minimum Wages Notification.
(xii) Writ Appeal Nos.1872 to 2214/2019 have been preferred by a
Commercial Establishment M/s. Coffee Day Global Limited which is
having a chain of outlets for sale of Coffee, beverages and snacks. Even
the said establishment had filed Writ Petitions before the learned Single
Judge challenging the Minimum Wages Notification applicable to its
establishments.
(xiii) Writ Appeal Nos.2266 to 2267/2019 & 2272/2019 have been
preferred by Federation of Karnataka Chamber of Commerce and
Industries (for short ‘FKCCI’), representing the commercial
establishments. Even the Appellants in these Appeals were the Petitioners
before the learned Single Judge in Writ Petitions filed for challenging the
relevant Minimum Wages Notification.
(xiv) Writ Appeal No.1704/2019 has been preferred by a Commercial
Establishment. The said Appellant was a Writ Petitioner before the
learned Single Judge in a Writ Petition filed for challenging the
Minimum Wages Notification.
(xv) Writ Appeal Nos.1765 to 1792/2019 have been filed by the
Karnataka Small Scale Industries Association (for short ‘KSSIA’). The
Appellants in these Appeals had challenged the Minimum Wages
Notification concerning some of the industries by filing Writ Petitions.
(xvi) Writ Appeal Nos.1794 to 1825/2019 have been preferred by the
Appellants who belong to the category of Foundry Industries who had
challenged the relevant Minimum Wages Notification before the learned
Single Judge by filing Writ Petitions.
(xvii) Writ Appeal No.1621/2019 is filed by a Limited Company coming
under the category of Brass, Copper, Aluminum, Steel Utensils
manufacturing industry. Even this Appellant is the Writ Petitioner before
the learned Single Judge in which the challenge was to the Minimum
Wages Notification.

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232 LABOUR LAW NOTES 2021 (1) LLN

(xviii) Writ Appeal Nos.1623 to 1628/2019 are filed by the Industries

claiming to be not specifically falling under any of the specific categories
in the Schedule to the said Act of 1948. Even these Appellants partially
succeeded before the learned Single Judge in a challenge to the Minimum
Wages Notification.
(xix) Writ Appeal Nos.1629 to 1653/2019 have been filed by the
industries falling under the category of Employment of Petrol and Diesel
Oil Pumps industries. Here again, the Appellants are the Writ Petitioners
before the learned Single Judge who could not succeed in their challenge
to the Minimum Wages Notification.
(xx) Writ Appeal Nos.2280 to 2281/2019 have been preferred by KSSIA
along with another. The Second Appellant is falling under the category of
Chemical Industry. The Appellants are the un-successful Petitioners
before the learned Single Judge.
(xxi) Writ Appeal Nos.2465/2019 & 2928 to 2937/2019 have been filed
FKCCI and other industries that are in the category of Metal Re-Rolling
(Ferrous) Industries. The Appellants were the Petitioners before the
learned Single Judge.
(xxii) Writ Appeal No.2466/2019 is also filed by FKCCI and six
industries which are the Chemical Industries which had impugned the
Minimum Wages Notification before the learned Single Judge.
(xxiii) Writ Appeal No.2467/2019 is filed by the Manufacturers of
Alcohol and distilleries. There was a challenge by the Appellants before
the learned Single Judge to the Minimum Wages Notification, as in case
of other industries.
(xxiv) Writ Appeal No.2468/2019 is preferred by FKCCI and other
Appellants belonging to the Plywood Industry who were un-successful
before the learned Single Judge in challenging the relevant Minimum
Wages Notification.
(xxv) In Writ Appeal No.2546/2019, the Appellant is a sugar industry
which is aggrieved by the rejection of its prayer for quashing the
applicable Minimum Wages Notification.
(xxvi) Writ Appeal No.2547/2019 has been preferred by the Appellant, a
Sugar Industry which is manufacturing sugar. Even the Appellant is the
un-successful Petitioner who had filed Writ Petition before the learned
Single Judge for challenging the relevant Minimum Wages Notification.
(xxvii) Writ Appeal Nos.2667/2019 has been filed by the Appellant who
claims to be the manufacturer of absorbable and non-absorbable sutures,
surgical meshes, gloves and other surgical equipment. It is claimed that

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 233
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
the Appellant does not fall under any of the employments covered by
Part-I or Part-II of the Schedule to the said Act of 1948.
(xxviii) Writ Appeal No.2745/2019 is filed by the Appellant-Company
which engaged in buying and distributing the electricity to consumers.
(xxix) In Writ Appeal No.2683/2019, the Appellants are a part of the
Food Processing industry i.e., processing of food material products like
pickles and preserved vegetables. Even the Appellants in this Appeal are
the un-successful Petitioners before the learned Single Judge.
(xxx) Writ Appeal No.2778/2019 & 2913 to 2915/2019 have been
preferred by FKCCI and others who are similarly placed Writ Petitioners
representing electronics industry.
(xxxi) Writ Appeal No.2909/19 is filed by FKCCI and two others who
claim that they fall in the category of employments not covered by the
Schedule under the said Act of 1948. They are also unsuccessful Writ
Petitioners.
(xxxii) Writ Appeal No.2911/2019 is preferred by FKCCI and three
others who are engaged in manufacture of rubber products. The
Appellants were the Petitioners who had challenged the relevant
Minimum Wages Notification.
(xxxiii) Writ Appeal Nos.2779/2019 & 2898 to 2900/2019 have also been
preferred by FKCCI, Bruhat Bengaluru Hotels Association and two other
Appellants belonging to the Hotel Industry, being aggrieved by the
rejection of their prayer by the learned Single Judge for quashing the
Minimum Wages Notification.
(xxxiv) Writ Appeal No.2814/2019 is filed by Engineering Industries
which claim to be covered by the provisions of Micro, Small and
Medium Enterprises Development Act, 2006 (for short “the said Act of
2006”). The Appellants had also challenged the relevant Minimum
Wages Notification before the learned Single Judge.
(xxxv) Writ Appeal Nos.2823 to 2831/2019 have been preferred by
FKCCI and others who are concerned with the Minimum Wages
Notification applicable to the employment in security agencies. Even the
Appellants are un-successful Petitioners who failed in their challenge to
the Minimum Wages Notification applicable to them.
(xxxvi) Writ Appeal No.2910/2019 is filed by FKCCI and three others
who had filed a Writ Petition for challenging the relevant Minimum
Wages Notification.

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234 LABOUR LAW NOTES 2021 (1) LLN

(xxxvii) Writ Appeal Nos.1681 & 1682/2019 have been preferred by the
Appellants who had challenged the relevant Minimum Wages
Notification by filing a Writ Petition before the learned Single Judge.
Delay in pronouncement of Judgment:
5. We must note here that the submissions of the learned Counsel in these
Appeals were initially concluded on 23rd August 2019 and the Judgment
was reserved. The Judgment which was to be pronounced in December 2019
could not be pronounced till January 2020 due to ill health of one of us
(Chief Justice). Before the Judgment could be pronounced, the learned
Counsel for the Appellants in Writ Appeal No.1681 to 1682/2019 filed a
Memo, dated 10th December 2019. Along with the said memo, copies of the
subsequent Notifications issued by the Government on 31st October 2019
were sought to be produced before the Court. The said Notifications were in
respect of four industries namely, Spinning Mills Industry, Textile
Manufacturing (Garments, Costumes and Tailoring) Industry, Cloth Dyeing
and Printing Industry and Textile (Silk) Industry. In case of these four
industries, the earlier Notifications issued were withdrawn which were the
subject matter of challenge in one of the Writ Petitions. On 20th January
2020, I.A. No.2 of 2020 was filed by the Appellants in Writ Appeal No.1681
of 2019 seeking permission to produce the said fresh Notifications, dated
31st October 2019 published in the official Gazette, dated 14th November
2019. The Appellants contended that they were desirous of relying upon the
said Notifications in support of their Appeals. Under such circumstances, by
virtue of the Order passed by this Court on 16th January 2020, the Appeals
were again fixed for further hearing on 23rd January 2020 and after
conclusion of further arguments, the Judgment was again reserved on 23rd
January 2020. The Judgment was kept ready and was to be pronounced on
31st March 2020. But, it could not be pronounced due to the closure of the
Courts due to corona virus pandemic.
Submissions of the Appellants:
6. Very detailed submissions have been made by the learned Counsel for
the respective parties. We are reproducing the relevant submissions of the
learned Counsel.
7. In Writ Appeal No.1611 of 2019, which is filed by the Private Hospital
and Nursing Homes Association, the learned Senior Counsel appearing for
the Appellants invited our attention to the impugned Minimum Wages
Notification issued by the Government, dated 6th January 2017 and in
particular, Clause-11 thereof which provided that wage rates stipulated in the
Notification and the applicable rates of dearness allowance from time to time
shall be entered in the respective columns and shall be paid. Inviting our
attention to the definition of ‘Wages’ contained in Clause (h) of Section 2 of
the said Act of 1948, he submitted that as long as the component of wages

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 235
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
paid to the Workmen falls within the definition of ‘wages’ defined in Clause
(h) of Section-2 and the aggregate paid is equal to or more than the
aggregate of the Minimum Wages fixed under different heads, it should be
taken that there is a sufficient compliance with the provisions of the said Act
of 1948. Therefore, he submits that Clause (11) of the impugned Notification
is liable to be quashed. He also invited our attention to Clause (3) of the
impugned Notification which provides that in the event the rate of wage paid
at present is higher, the payment at the said rate shall be continued and the
increase in dearness allowance from time to time also shall be remitted. In
support of his contention, the learned Counsel relied upon the decision of the
Apex Court, in the case of Airfreight Ltd. v. State of Karnataka, 1999 (4)
LLN 1 (SC) : AIR 1999 SC 2459 : 1999 (6) SCC 567. He submitted that
though the first part of Clause (3) of the impugned Notification had been
quashed by the learned Single Judge, the second part as regards the payment
of increase in dearness from time to time has not been quashed.
7.1. He submitted that the portion of Clause (3) of the impugned
Notification which requires the Employer to pay increased dearness
allowance from time to time, even though the rate of wages paid is higher
than the Minimum Wages, also needs to be quashed. He pointed out that
even the figure of the rent taken under cost of house rent for arriving at the
Minimum Wages is very high. 40% of the Minimum Wage should not have
been taken as cost of house rent. Inviting attention of the Court to paragraph
28 of the Statement of objections filed by the State Government, he pointed
out that the State Government has relied on the sixth pay Commission report
of the Karnataka State and pointed out that even when the Government fixes
living wage of its Employees and not the Minimum Wages or fair Wages,
the rate of house rent is taken at 30%. The submission is that for fixation of
Minimum Wages, the house rent should always be the rent corresponding to
the minimum area provided under the Government Industrial Housing
Scheme. He also invited our attention to the zone-wise statements relied
upon by the State Government. He placed reliance upon the decision of the
Apex Court in the case of Workmen, rep. by Secretary v. Reptakos Brett
and Co. Ltd. and another, 1991 (2) LLN 1166 (SC) : 1992 (1) SCC 290,
which lays down that the rent corresponding to the minimum area provided
for under Government Industrial Housing Scheme should be taken into
consideration while fixing the Minimum Wages. He pointed out that the
learned Single Judge, instead of taking recourse to the Government
Industrial Housing Scheme, erroneously referred to affordable housing
scheme for urban poor. He submitted that said scheme provides for grant of
loans for buying houses. He submitted that even in the seventh pay
Commission, only around six percent (6%) had been allocated for house rent
allowance.
7.2. He submitted that the fixation and neutralization of dearness
allowance is contrary to law and direction to pay four paise per point

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236 LABOUR LAW NOTES 2021 (1) LLN

increased for every point increase in State average consumer price index
above 5780 point is incorrect. He submitted that when the impugned
Notification was issued, the consumer index was 6537 points as shown at
page 676 of the paper book. He submitted that the figure of 5780 points was
the average points for the year 2013 and therefore, the impugned
Notification should have provided for asking the Employer to neutralize the
increase in cost of living allowance at 6537 points.
7.3. He pointed out that for the Doctors, the earlier Minimum Wage fixed
of `6966.70 which has been increased to `40908.40 which comes to increase
at 487.20% and whereas in case of other categories, the increase is only
75%. He submitted that an error has crept in as abnormal increase under the
head cost of house (rent) has been given.
7.4. He urged that the Advisory Board constituted under Section 5(1)(b)
of the said Act of 1948 has not tendered any advice to the State Government.
He submitted that various other directions given under the impugned
Notifications regarding providing rest rooms, washing facilities, drinking
water facilities, hand gloves, slippers and cleaning materials etc., are
contrary to the provisions of the said Act of 1948. He pointed out that in case
of three types of industries such as (i) Spinning Mills Industry, (ii) Cloth
Dye and Printing Industry and (iii) Textile (Silk) Industry, the Minimum
Wage Notifications were withdrawn and in case of Tailoring Industry, the
Notification notifying the proposed revision of Minimum Wages has also
been withdrawn and thereby, the State Government has indulged in hostile
discrimination. He submitted that considerations for the withdrawal of the
said Notifications should also apply to other industries as well.
8. In Writ Appeal No.1612/2019, a memo has been filed by the learned
Advocate for the Appellants adopting the arguments addressed in Writ
Appeal No.1611/2019. Even in Writ Appeal No.1619/2019, by filing a
memo, the Appellants have adopted the arguments advanced in W.A.
No.1611/2019. The same is the case in W.A. No.1620/2019. Even in Writ
Appeal Nos.1621/2019, 1765 to 1792/2019, 1794 to 1825/2019 & 2280-
2281/2019, the learned Counsel appearing for the Appellants have adopted
the submissions made in Writ Appeal No.1611/2019.
9. In Writ Appeal Nos.2266/2019, 2272/2019, 2465/2019, 2466/2019,
2467/2019, 2468/2019, 2778/2019, 2779/2019, 2814/2019, 2823/2019,
2909/2019, 2910/2019 & 2911/2019, common submissions have been made.
The learned Counsel appearing for the Appellants in the said appeals invited
attention of the Court to the decision of the Apex Court in the case of Bijay
Cotton Mills Limited v. State of Ajmer, AIR 1955 SC 33, and pointed out
that in the case before the Apex Court, the Constitutional validity of the
provisions of the said Act of 1948 was challenged. He pointed out that the
Apex Court held that though the provisions of the said Act of 1948 interfere
with the Fundamental Rights guaranteed under Clause (g) of Article 19 (1)

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 237
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
of the Constitution of India, the restrictions imposed therein are reasonable
and are in the interests of general public. He pointed out that therefore, the
Apex Court held that the restrictions are protected by Clause (6) of Article
19 of the Constitution of India. He submitted that in view of this position,
the impugned Notifications issued under the said Act of 1948 will have to be
strictly scrutinized, as the same curtail the Fundamental Rights of the
Employer. He relied upon the decision of the Apex Court in the case of
Subhash Chandra v. Delhi Subordinate Services, 2009 (15) SCC 458 and
pointed out that the Apex Court held that the doctrine of strict scrutiny
adopted by the Courts in United States of America will also be applicable in
India. The Apex Court held that where a Statute has been enacted restricting
the Fundamental Rights of a citizen under Article 19 of the Constitution of
India, the State will have to justify the reasonableness of such a Statute. He,
would, therefore submit that the learned Single Judge has committed an error
by holding that the expression ‘shall’ used in Section 9 of the said Act of
1948 is not mandatory, but directory. Similarly, the findings recorded that
Rules 16 & 17 of the Karnataka Minimum Wages Rules, 1958 (for short ‘the
said Rules of 1958’) are also not mandatory is erroneous. He submitted that
there is no presumption of validity exists in favour of the impugned
Notifications, as held by the learned Single Judge. He further submitted that
if the view taken by the learned Single Judge that the Advisory Board need
not specifically discuss each and every class or category of employment is
upheld, the provisions of the said Act of 1948 and the Rules framed therein
will become vulnerable. He submitted that the learned Single Judge has
misread the ratio laid down by the Apex Court in the case of Chandra
Bhavan Boarding and Lodging, Bangalore v. State of Mysore and another,
AIR 1970 SC 2042. He urged that as the expression ‘shall’ has been used in
Section 9 of the said Act of 1948, the defects in constitution of the Advisory
Board are not curable. He submitted that in the present case, it was
demonstrated that Rules 16 & 17 of the said Rules of 1958 mandate that any
decision of the Advisory Board shall be arrived at after voting and the said
Rules cannot be by-passed by holding that the same is not mandatory. He
submitted that if the Advisory Board ignores the views of affected parties,
the same will defeat the very object of the provisions of Section 5(1)(b) of
the said Act of 1948. He submitted that merely because the high
functionaries of the State Government are involved in the decision making
process, no presumption under law can be attached to the said decision. He
submitted that the fixation of Minimum Wages has to be a very strict process
and therefore, the learned Single Judge could not have given approval to the
retrospective operation of the impugned Notification.
9.1. As regards the constitution of the Advisory Board, it was urged by
the learned Counsel appearing for the Appellants that the representatives
nominated to represent the Employers have no intricate or full knowledge in
relation to the nature of work and the problems faced by the specific

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238 LABOUR LAW NOTES 2021 (1) LLN

industries. He submitted that the learned Single Judge has failed to note the
relevant fact that persons appointed to the Committee to represent the
Employees are also required to fulfill the parameters laid down for
appointment. He relied upon the observations made by the Apex Court in the
case of Ministry of Labour and Rehabilitation and another v. Tiffin’s
Barytes Asbestos & Paints Ltd. and another, 1985 (3) SCC 594. He
submitted that the representation given to the Employees was increased to
twelve (12) members and it is not clear as to whether a member by name Mr.
Raja Mohammad Fakrusabha Bhagawan was representing the Employer or
Employees. He submitted that the relevant data furnished on behalf of the
Employers was not considered by the Advisory Board. He also made the
same submissions about the increased house rent allowance which have been
made in support of Writ Appeal No.1611/2019.
9.2. The learned Counsel submitted that as compared to the neighboring
States, the quantum of Minimum Wages in the State of Karnataka is highly
excessive. He pointed out the discrepancies in the proceedings of the
Advisory Board by pointing out that there was no effective participation of
the Chairman of the Advisory Board. He reiterated the submissions made in
Writ Appeal No.1611/2019 to the effect that there were no recommendations
made about the proposed revision of Minimum Wages by the Advisory
Board and that there was no proper consultation between the Advisory Board
and the State Government before issuing the impugned Notification and that
the Advisory Board did not follow the mandatory procedure prescribed
under Rules 16 & 17 of the said Rules of 1958. He relied upon the decision
of the Apex Court in the case of State of Uttar Pradesh v. Babu Ram
Upadhyay, 1971 SCR (2) 679. He submitted that the Chairman of the
Advisory Board ought to have followed the procedures laid down under
Rules 16 & 17 of the said Rules of 1958. He relied upon the decision of this
Court in the case of Karnataka Planters’ Association v. State of Karnataka
ILR 1986 Kar. 1787. He submitted that when the Advisory Board has not
given any recommendations, the Government should not have notified the
revised rates of Minimum Wages by issuing the impugned Notifications. He
submitted that the impugned Notifications suffer from non-application of
mind, inasmuch as the Advisory Board did not apply its mind at all. He
submitted that considering the extent/quantum of raise in the Minimum
Wages proposed, the industries will have to close down. He submitted that
considering the short time within which the impugned Notifications were
published from the date of recommendations made by the Advisory Board,
an adverse inference ought to be drawn that the entire exercise was done by
the State Government in a hurried manner, without application of mind. He
submitted that rise of pay/wages on account of contribution of ESI, PF and
Gratuity to an extent of 100% in some cases is in gross violation of Article
14 of the Constitution of India. He submitted that the rate of Minimum
Wages enhanced/fixed in respect of Cinchona, Rubber, Tea and Coffee

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 239
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
plantation industries are reasonable and affordable and therefore, there is a
hostile discrimination while fixing the Minimum Wages of different
industries. He submitted that the enactment of said Act of 1948 is based on
the concept of one male member feeding his wife and two children which is
now outdated. He also argued that the concept of equal opportunity, equal
pay for equal work ought to have been considered by the State Government
to the industry.
10. The submission of the learned Counsel for the Appellants in Writ
Appeal No.1846/2019 is more or less repetition of the submissions made in
the aforesaid Appeals. In addition, it is submitted that the Advisory Board
has decided the cases of thirty seven (37) industries in one stretch in less
than three hours. He repeated the submissions made in the other Appeals that
the Advisory Board did not render any recommendations. He submitted that
the learned Single Judge has failed to consider the plea of the Employer that
indirect cost on the Employer on account of exorbitant increase in the
Minimum Wages is ignored by the State Government. He submitted that the
increase of Minimum Wages leads to increase in contribution of the
Employer towards ESI, EPF and gratuity and therefore, the industries will
not be in a position to supply the products at an affordable price. He also
criticized the direction of the learned Single Judge with regard to payment of
Interest at the rate of 6%. He submitted that the rate of increase in Minimum
Wages at an average of 60% severely compromises the competitiveness and
sustainability of the industries. In Writ Appeal Nos.1872-2214/2019,
2547/2019 & 2546/2019, more or less, similar submissions have been
canvassed.
11. In Writ Appeal No.1704/2019, the arguments made by the learned
Counsel for the Appellant is more or less a repetition of the arguments
canvassed by as above. Reliance was placed on some of the Judgments
including the Judgment of the Apex Court rendered in Airfreight (supra). It
was submitted that the Constitutional validity of the provisions empowering
the State Government to revise the Minimum Wages was upheld by the
Constitution Bench only in view of the safeguard provided in the said Act of
1948 of the Advisory Board tendering advice. The learned Counsel relied
upon the comparative Statement of the Minimum Wages fixed in various
States and submitted that this table would show that Minimum Wages fixed
in the State of Karnataka are much higher than what is fixed in the
neighboring States. He pointed out that in the previous wage revision of 5th
February, 2013, the average increase given was 5.61% and in July 2012, the
average increase was of 20.55% and in the impugned Notification, the
average increase in Minimum Wages for skilled and semiskilled Workmen is
about 75%. He pointed out that the Notification pertaining to Textile
Industry has been withdrawn, but the Notification regarding the industries
which are engaged in Textile retail business of selling clothes has not been
withdrawn and thereby the Government practicing discrimination.

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240 LABOUR LAW NOTES 2021 (1) LLN

12. In Writ Appeal No.2683/2019, the learned Counsel pointed out that
the impugned Notification, dated 16th September 2019 revising the
Minimum Wages in respect of Appellant’s industry of food processing and
packaging of food products including coffee, tea and spices, the State
Government has classified Tumakuru City as Zone-1 area and the reason for
designation of the said area is that it is a Corporation under Section-3 of the
Karnataka Municipal Corporation Act, 1976. He submitted that therefore, by
the said Notification, un-equals have been treated as equals by violating
Article 14 of the Constitution of India. He submitted that there was no
reason to classify Tumakuru City as falling in Zone-1 along with Bengaluru
and in fact, in the subsequent Notification, Tumakuru city has been placed in
Zone-2. He relied upon the decision of the Apex Court in the case of
Bhikusa Yamasa Kshatriya and another v. Sangamner Akola Taluka Bidi
Kamgar Union and others, AIR 1963 SC 806. He submitted that while
fixing the rates of Minimum Wages, various local factors such as economic
climate of the locality and general economic condition of the industrial
development in the area, adequacy of Wages paid and earnings in other
comparable employments and similar other matters should be taken into
account. He pointed out the manner in which the data from sixteen cities was
collected. He submitted that the Court will have to see the economic and
financial impact of its decision while deciding the cases relating to
industries. He relied on the decision of the Apex Court in the case of
Shivashakthi Sugars Ltd. v. Shree Renuka Sugars, 2017 (7) SCC 729. He
submitted that the so-called data collected by the State Government of
sixteen cities is self-prepared by the Government only with a view to give
very high benefits to Non-Bengaluru Workmen. He submitted that the
grounds which he urged in the pleadings and written and oral submissions
made before the learned Single Judge have not been considered.
13. In support of the Writ Appeal No.1679-1682/2019, the learned
Counsel submitted that under the earlier Notification, dated 23rd January
2012, the revision of wages for Employees of the Engineering Industry was
linked to the Consumer Price Index (for short ‘CPI) (Industrial Workers)
1960 equivalent 100 series (CPI) (IW) and Employers were liable to pay
V.D.A. at the rate of 4 paise per point over and above 3944 points in the CPI
(IW), in addition to the basic wages to all four categories of Employees in
the Engineering Industries. He pointed out that since the CPI (IW) 1960
equivalent to 100 series does not exist in the State of Karnataka, the State
Government has converted the CPI (IW) series of 2001 = 100 determined for
five Centers in Karnataka to CIP (IW) series 1987-88 = 100 by multiplying a
conversion/linking factor. He submitted that due to changes in consumption
pattern, change in basket of goods of the CPI has resulted in highly
unrealistic CPI if converted to 1960 = 100 series.
14. He pointed out that the earlier, the Minimum Wages Advisory Board,
in its meeting, dated 15th December 2016 recommended to the State

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 241
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Government to form a Committee consisting of experts to review the
Shanthappa Committee report. He pointed out that the State Government has
constituted a Committee to submit a report which is yet to be received. It is
submitted that the proposal to revise the Minimum Wages was formulated on
the basis of the Minimum Wages revised for twenty six (26) scheduled
employments in the year 2015-2016 by claiming that the same were made
following Shanthappa Committee report. He submitted that they arrived at
erroneous figure of `11,587 per month instead of `10,918 per month for un-
skilled Workers of Zone-1. He submitted that the proposed revision for
semi-unskilled Workers of Zone-1 was erroneously made at `735.46 per
month and for the skilled Workers, the enhancement of `809 per month was
made. He submitted that even in case of highly skilled Worker of Zone-1,
salary was erroneously enhanced. He submitted that this enhancement by
very high percentage is without any basis.
15. He submitted that the notes on the file clearly demonstrate that there
was no material available before the Government to enable it to proceed
under Section 5(1)(b) of the Act of 1948. His submission is that the act of
the Government in following the procedure under Clause (b) of sub-section
(1) of Section 5 is highly erroneous and in fact, the procedure under Clause
(a) of sub-section (1) of Section-5 ought to have been followed.
16. He criticized the very constitution of the Advisory Board and made
similar submissions which are made by some of the learned Counsel
representing the other Appellants. He submitted that the constitution of the
Board itself was illegal, as sufficient number of independent members were
not there. He would urge that in case of Beedi, cashew, handloom and power
loom (cotton) industry, the State Government had constituted a tripartite
Committee for revision of Minimum Wages. He submitted that appointing
members of these industries on the Board was itself illegal. He also pointed
out the manner in which the proceedings were conducted on 6th December
2017. He submitted that the minutes of the proceedings reveal that the
Advisory Board never discussed the objections filed to any of the 37
proposals. He pointed out that the extent of Minimum Wages fixed in respect
of other industries. He urged that the rates revised Minimum Wages are
abnormally high which have been finalized without considering the paying
capacity of the Employers. He submitted that the impugned Notification
fixing the Minimum Wages for Managers, Personal Officer, Assistant
Manager Etc., even though the same are out of the purview of the said Act of
1948, is illegal. He submitted the contribution made by the Employer
towards Provident Fund, Gratuity, need of education, recreation are being
met through bonus. He stated that Medical care of the Employee and his
family members are being met through State Insurance and the same should
have been kept out while fixing the Minimum Wages.

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242 LABOUR LAW NOTES 2021 (1) LLN

17. In Writ Appeal No.1272 of 2019, while adopting the arguments

addressed by the learned Counsel representing the Employer in Writ Appeal
No.1611/2019, it was submitted that the learned Single Judge has ignored
the grounds urged in Writ Petition No.11863/2018 filed by the Appellant.
The challenge was to the Notification, dated 30th December 2017 in respect
of the employment not covered in any of the scheduled employments. He
submitted that the Appellant which is the manufacturer of Pens and Pen-
Pencils was never intended to be brought under Part-I or Part-II of the
schedule. He submitted that the impact of such sudden increase to the extent
of `3,000 to `4,000 in the Wages of fresh Employees will have a cascading
effect on the Permanent Employees who have put in several years of service.
He submitted that the exorbitant increase in Minimum Wages ranging from
52.22% to 72.88% has been granted. The learned Single Judge ignored that
the State Government had already notified the basic Wages and the VDA
(Variable Dearness Allowance) which increases based on the cost of living
index. He submitted that the necessity of having to pay cost of living
allowance over consumer price index of 6537 is misconceived and in fact,
any increase over and above 6843 is required to be neutralized. He submitted
that Micro, Small and Medium Enterprises (MSMEs) are providing more
employment to the citizens and if they are not in a position to pay the
Minimum Wages, they will migrate to the neighboring States. Such an
exorbitant increase would not only adversely affect the economic viability of
the industry but also would even lead to closure of some of the industries as
unviable.
18. In Writ Appeal No.2667/2019, while adopting some of the arguments
made by the learned Senior Counsel appearing for the Appellants in Writ
Appeal No.1611/2019, additional submissions are made which are similar to
the submissions made in Writ Appeal No.1272/2019, as the Appellant in the
said Appeal also falls in the same category of employment which is not
covered in any of the Scheduled employment.
19. In Writ Appeal No.1611/2019 and connected matters, the learned
Senior Counsel appearing for the Employee-Respondent No.11 has made
detailed submissions. He submitted that FKCCI, KASSIA and Karnataka
Employers’ Association who are the part of the Minimum Wages Advisory
Board, are the parties to the recommendations made by the Advisory Board
and therefore, they are stopped from challenging the impugned Notifications.
He submitted that while fixing or revising the Minimum Wages, the various
factors will have to be taken into consideration including the directive
principles of State policy as enshrined in Part-IV of the Constitution of India
particularly, Articles 39, 39(e), 42 & 43. He submitted that under Article 21
of the Constitution of India, right to life of dignity and the right to livelihood
for all persons is guaranteed. He submitted that the rights envisaged under
Article 21 can be protected only through the assurance of Minimum Wages
commensurate with such life. He urged that said view is reiterated by the

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 243
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Apex Court in the case of Bijay Cotton Mills Ltd. v. State of Ajmer (supra).
He submitted that in the case of Standard Vacuum Refining Co. of India v.
Its Workmen, AIR 1961 SC 895, the Apex Court adopted five norms for
calculation of the Minimum Wages. Subsequently, the Apex Court expanded
the same by adding a sixth norm to be considered for fixation of Minimum
Wages in the case of Reptakos (supra). He submitted that in the case of
Unichoyi (U) and others v. State of Kerala, AIR 1962 SC 12, the Apex
Court clarified that the Minimum Wage is not a bare subsistence wage, but it
lies above that and below the fair wage. He submitted that in the present age,
a family requires a minimum of about `21,000 per month to survive. He
urged that the exercise of fixation of Minimum Wages is a part of
Legislative Function and therefore, it cannot be decided solely on the basis
of the compliance with the Principles of Natural Justice. He relied on the
decision of this Court in the case of Mangalore Ganesh Beedi & Allied
Beedi Factories Workers Association v. State of Karnataka and others,
MANU/KA/0326/2003 and Karnataka Planters Association (supra). He
submitted that the State Government is not bound to record its reasons for
fixation or revision of Minimum Wages. He submitted that the Apex Court,
in the case of Ministry of Labour and Rehabilitation and another v.
Tiffin’s Barytes Asbestos and Paints Ltd. and another (supra) held that
fixation of Minimum Wages being a social welfare measure undertaken to
further the directive Principles of the State policy, such action of the State
cannot be struck down on mere technicalities. Relying upon the decision of
the Apex Court in the case of Unichoyi (U) (supra), he submitted that the
Writ Courts cannot sit as a Court of Appeal over the policy decision of the
State Government of fixation or revision of Minimum Wages. He submitted
that the Court does not have expertise to decide in what manner the
Minimum Wages should be fixed and what should be the quantum thereof.
20. He submitted that any error in the composition of Advisory Board
will not be a fatal to the impugned Notifications issued pursuant to the
advice of the Advisory Board. He submitted that the recommendations of the
Advisory Board are not binding on the State Government. He relied upon the
decision of the Apex Court in the case of Edward Mills Co. Ltd., Beawar
and others v. State of Ajmer and another, AIR 1955 SC 25. He submitted
that a note of each and every objections received by the Board was taken. He
relied upon a chart which is annexed to the written submissions. He pointed
out that in the meeting, dated 13th May 2016, the objections relating to the
Hospitals and Nursing Homes were considered. He relied upon the decision
of the Bombay High Court in the case of Arbuda Bhuvan Tea Shop and
others v. State of Maharashtra and others, 1991 (2) LLN 885 (Bom.) :
1992 (1) LLJ 807 Bom.
21. He submitted that the State Government has an option to take
recourse either to Clause (a) of sub-section (1) of Section 5 or Clause (b) of
sub-section (1) of Section 5 of the said Act, 1948. He submitted that as held

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244 LABOUR LAW NOTES 2021 (1) LLN

in the case of Chandra Bhavan Boarding (supra), both the provisions are
nothing but the procedure for collecting necessary information/data. He
pointed out that in the proceedings of the meeting of the Advisory Board,
dated 17th April 2015, the Employers’ representatives accepted the revised
rates of wages unanimously and as reflected from the proceedings of the
Advisory Board meeting, dated 2nd January 2016, the representatives of the
Employers accepted the calculation of components of Minimum Wages.
Drawing the attention of the Court to the various proceedings of the
Advisory Board, he pointed out that in many cases, voting has been taken.
22. As regards the allegation that the rates of Minimum Wages fixed are
on the higher side and exorbitant, he submitted that the wages fixed are
consistent with the Notifications issued by the Central Government, revising
the Minimum Wages. He also pointed out the recommendations made by the
7th Pay Commission regarding minimum pay fixed in the Government
service. He submitted that in any case, the writ Court cannot sit in Appeal
over the rates of Minimum Wages fixed by the State Government. He urged
that the argument that the rates of Minimum Wages in the neighboring States
are much less is not at all relevant, in the light of the law lay down by the
Apex Court in the case of Unichoyi (U) (supra).
23. He submitted that the rates proposed in the draft Notifications can be
increased in the final Notifications, as held by the Apex Court, in the case of
Chandra Bhavan (supra) and also in the decision of this Court in the case of
Mangalore Ganesh Beedi (supra). His submission is that on the basis of the
provisions of the Maintenance and Welfare of Parents and Senior Citizens
Act, 2007 there is a Statutory obligation on the persons to maintain their
parents and hence, instead of taking three consumption units, five
consumption units should be taken into consideration accounting for the
liability to maintain the parents.
24. As regards the component of housing, he submitted that the rent of
`4,000 per month taken is extremely on the lower side. He pointed out that
Industrial Housing Scheme does not exist at present and therefore,
Affordable Housing for the Urban Poor scheme introduced by the Ministry
of Housing and Urban Poverty Alleviation has been adopted, which
prescribes an area of 300-400 square feet.
25. Lastly, he relied upon the primary object of the said Act of 1948 and
also the speech delivered by Doctor B.R. Ambedkar in the Constituent
Assembly on 25th November 1948. He also relied on the Principle of
transformative constitutionalism and therefore, he would submit that no
interference is called for with the impugned Order passed by the learned
Single Judge.
26. In Writ Appeal No.1520/2019 which is preferred by the Union which
arises out of the Writ Petition filed by the said Union, the learned Counsel

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 245
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
appearing for the Appellants pointed out that the revised rate of Minimum
Wages Notification issued in respect of the Textile (Silk) industry, Spinning
Mills Industry and Cloth Dying and Printing Industry were illegally
withdrawn. Similarly, a Draft Notification in respect of Tailoring Industry
was withdrawn and these withdrawals were subjected to a challenge by the
Appellant in the Writ Petition before the learned Single Judge. He submitted
that three final Notifications clearly provided that they would come into
force at once and therefore, a vested right was created in favour of the
Employees as per the said three Notifications. He submitted that there is no
provision for withdrawal of the said Notifications and hence, withdrawal of
Notifications is illegal, inasmuch as said withdrawal is against the very
scheme of the said Act of 1948. He submitted that the learned Single Judge
has rightly negatived the arguments based on Section 21 of the General
Clauses Act. He submitted that even if Section 21 of the General Clauses
Act was applicable, even before withdrawing the final Notification, an
opportunity to submit objections ought to have been granted to the
Employees, but however, that was not done. He submitted that there was no
reason to withdraw the draft Notification, as necessary modification could
have always been made by the State Government while issuing the final
Notification. He submitted that withdrawal of the Notifications is arbitrary
and is, therefore, violative of Article 14 of the Constitution of India.
27. The submissions made by the learned Counsel appearing for the
Appellant in Writ Appeal No.1520/2019 were countered by the learned
Senior Counsel representing the Employer in the said Writ Petition. He
urged that as far as the draft Notification is concerned, there is no prejudice
to the Employees, as the action of fixing the rate of Minimum Wages was
not completed. He supported the findings recorded by the learned Single
Judge on the issue of withdrawal of the Notifications. He placed reliance on
Section 21 of the General Clauses Act as well as the decision of this Court in
the case of L.T. Komatsu Ltd. v. All India Trade Union Congress, ILR
2012 Kar. 2411, and urged that withdrawal can be made by taking recourse
to Section 21. He urged that no interference is called for with the decision to
withdraw the Notifications.
28. In this behalf, we must refer to documents subsequently filed and
taken on record in Writ Appeal No.1681/2019 along with Memo, dated 10th
December 2019. An application being IA-1/2020 was made in the said
appeal seeking permission of the Court for production of the said documents
by way of additional evidence. The said documents which are produced are
four Notifications, dated 30th October 2019, fixing the Minimum Wages in
respect of Spinning Mills Industry, Textile (silk) Industry, Cloth Dyeing and
printing Industry and Textile Manufacturing and Tailoring Industry. The
learned Counsel appearing for the Appellant in Writ Appeal No.1681/2019
made submissions on the basis of the said fresh Notifications. His
submission is that before issuing those fresh Notifications, recourse was

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246 LABOUR LAW NOTES 2021 (1) LLN

taken to Clause (a) of sub-section (1) of Section 5 by constituting Tripartite

Committees. He submitted that before issuing impugned Notifications in
respect of the other industries, recourse ought to have taken to Clause (a) of
sub-section (1) of Section 5. He submitted that four Notifications show that
after recourse was taken to Clause (a) of sub-section (1) of Section 5, the
Minimum Wages fixed earlier drastically came down. He would submit that
the act of the State Government in taking recourse to Clause (b) of sub-
section (1) of Section 3 only in respect of selected few industries amounts to
hostile discrimination which is violative of Article 14 of the Constitution of
India.
29. The submission of the Respondents in Writ Appeal No.1681/2019 is
that the said four Notifications are entirely relating to the different industries
which are other than the industries in respect of which the Notifications have
been challenged by the Employers. For countering the above arguments,
learned Counsel appearing for the Appellants in Writ Appeal No.1520/2019
submitted that four Notifications issued are subject to final outcome of Writ
Appeal No.1520/2019 where there is a challenge to withdrawal of the
Notifications and therefore, he submitted that said Notifications have no
relevance at all. He urged that if this Court accepts that the withdrawal of the
Notifications was bad in law, the new Notifications will cease to exist.
30. The learned Additional Government Advocate submitted that the Writ
Appeals preferred by the Employers is a legal ploy adopted by them to delay
the payment of reasonable Minimum Wages to millions of Workers in
Karnataka and their intention is to thwart the efforts of the State Government
to achieve its Constitutional obligations/objects of social and economic
justice. He submitted that as can be seen from the Notification, the Minimum
Wages have been enhanced in a range of `8,000 to `15,000 and the Wages
have been revised after four to five years. He relied on the decisions of the
Apex Court in the case of Reptakos Brett (supra) and Unichoy (U) (supra).
He pointed out that Minimum Wages in respect of scheduled employment
have been fixed separately for three zones and wage structure is arrived at on
the basis of the scientific research and empirical data collected by the State
agencies in April, 2015. He pointed out that for three zones, the cost of food,
cost of clothing, cost of miscellaneous, cost of housing and the additional
components as per the decision of the Apex Court in the case of Reptokas
Brett (supra) are different and in fact, the amounts in respect of said five
components are highest in Zone-1, followed by Zone-2 & 3.
31. He submitted that as regards 37 Draft Notifications, as many as 521
objections were received and those objections were considered in the
meetings of the Advisory Board held on seven different dates in relation to
various industries. He pointed out that wherever needed, voting was done in
the meetings of the Advisory Board. He submitted that the note sheets of the
Government show that the Secretary of the Government, after making

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 247
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
verification and also after discussions, placed the files before the Hon’ble
Minister concerned, who accepted the recommendations of the Advisory
Board on 23rd December 2016. He submitted that there is nothing wrong
with the constitution of the Advisory Board which has been done in strict
compliance of the said Act of 1948. He submitted that the Employers are
bound to pay their part of contribution towards ESI and PF which is their
statutory obligation.
32. As regards challenge to the withdrawal of the Notifications, he
submitted that firstly, there is a direction issued to the State Government by
the learned Single Judge to complete the exercise of the revision of
Minimum Wages within a period of six months. Secondly, by virtue of
Section 21 of the General Clauses Act, the State Government had the
authority to withdraw the Notifications, especially when the Notifications
were in respect of the industries which were on the verge of closure due to
huge losses. He would, therefore, submit that no interference is called for
with the impugned Order of the learned Single Judge.
Consideration of the provisions of the said act of 1948:
33. Firstly, it is necessary to consider the objects of the said Act of 1948
which are summed up in the case of U. Unichoi (supra) by the Apex Court
as under:
“What the Act purports to achieve is to prevent exploitation of Labour and for
that purpose authorizes the appropriate Government to take steps to prescribe
minimum rates of wages in the scheduled industries. In an underdeveloped
country which faces the problem of unemployment on a very large scale it is not
unlikely that Labour may offer to work even on starvation wages. The policy of
the Act is to prevent the employment of such sweated Labour in the interest of
general public and so in prescribing the Minimum Wage rates the capacity of the
Employer need not be considered. What is being prescribed is Minimum Wage
rates which a welfare State assumes every Employer must pay before he employs
Labour.”
Even in the case of Y.A. Mamarde v. Authority under Minimum Wages
Act, Nagpur and another, 1972 (2) SCC 108, the Apex Court observed thus:
“Let us first deal with this question. The Act which was enacted in 1948 has its
roots in the recommendation adopted by the International Labour Conference in
1928. The object of the Act as stated in the preamble is to provide for fixing
minimum rates of wages in certain employments and this seems to us to be
clearly directed against exploitation of the ignorant, less organised and less
privileged members of the society by the capitalist class. This anxiety on the part
of the society for improving the general economic condition of some of its less
favoured members appears to be in supersession of the old Principle of absolute
freedom of contract and the doctrine of laissez faire and in recognition of the
new Principles of social welfare and common good. Prior to our Constitution this
principle was advocated by the movement for liberal employment in civilised
countries and the Act which is a pre-constitution measure was the offspring of

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that movement. Under our present Constitution the State is now expressly
directed to endeavour to secure to all Workers (whether agricultural, industrial
or otherwise) not only bare physical subsistence but a living wage and
conditions of work ensuring a decent standard of life and full enjoyment of
leisure. This Directive Principle of State Policy being conducive to the general
interest of the public and, therefore, to the healthy progress of the nation as a
whole, merely lays down the foundation for appropriate social structure in which
the Labour will find its place of dignity, legitimately due to it in lieu of its
contribution to the progress of national economic prosperity. The Act has since
its enactment been amended on several occasions apparently to make it more
and more effective in achieving its object which has since secured more firm
support from the Constitution.” (underlines supplied)
Consideration of the relevant provisions of the said act of 1948:
34. Now we turn to the scheme of the said Act of 1948. Clause (b) of
Section 2 of the said Act of 1948 which is very relevant reads thus:
“2. Interpretation.—
“(b) “appropriate Government” means—
(i) in relation to any scheduled employment carried on by or under the
authority of the Central Government or a Railway administration, or in
relation to a mine, oil-field or major port, or any corporation established by a
Central Act, the Central Government, and
(ii) in relation to any other scheduled employment, the State Government;”
35. The term “Wages” as been defined in Clause (h) of Section 2 of the
said Act which reads thus:
“(h) “Wages” means all remuneration, capable of being expressed in terms of
money, which would, if the terms of the contract of employment, express or
implied, were fulfilled, be payable to a person employed in respect of his
employment or of work done in such employment and includes house rent
allowance, but does not include—
(i) the value of—
(a) any house accommodation, supply of light, water, Medical attendance, or
(b) any other amenity of any service excluded by general or special order of
the appropriate Government;
(ii) any contribution paid by the Employer to any Pension Fund or Provident
Fund or under any scheme of social insurance;
(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to the person employed to defray special expenses entailed
on him by the nature of his employment; or
(v) any gratuity payable on discharge;”

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 249
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
36. The power of the appropriate Government to fix the minimum rates of
wages and its review or revision is provided under Section 3 of the said Act
of 1948 which reads thus:
“3. Fixing of minimum rates of wages.— (1) The appropriate Government shall,
in the manner hereinafter provided,—
(a) fix the minimum rates of Wages payable to Employees employed in an
employment specified in Part I or Part II of the Schedule and in an employment
added to either Part by Notification under Section 27:
Provided that the appropriate Government may, in respect of Employees
employed in an employment specified in Part II of the Schedule, instead of
fixing minimum rates of wages under this clause for the whole State, fix such
rates for a part of the State or for any specified class or classes of such
employment in the whole State or part thereof;
(b) review at such intervals, as it may think fit, such intervals not exceeding
five years, the minimum rates of wages so fixed and revise the minimum rates,
if necessary:
Provided that where for any reason the appropriate Government has not
reviewed the minimum rates of wages fixed by it in respect of any scheduled
employment within any interval of five years, nothing contained in this clause
shall be deemed to prevent it from reviewing the minimum rates after the
expiry of the said period of five years and revising them, if necessary, and until
they are so revised the minimum rates in force immediately before the expiry
of the said period of five years shall continue in force.
(1-A) Notwithstanding anything contained in sub-section (1), the appropriate
Government may refrain from fixing minimum rates of wages in respect of any
scheduled employment in which there are in the whole State less than one
thousand Employees engaged in such employment, but if at any time, the
appropriate Government comes to a finding after such inquiry, as it may make
or cause to be made in this behalf, that the number of Employees in any
scheduled employment in respect of which it has refrained from fixing
minimum rates of wages has risen to one thousand or more, it shall fix
minimum rates of wages payable to Employees in such employment as soon as
may be after such finding.”
37. In the present case, there is no dispute that the appropriate
Government is the State Government. As per Clause (b) of sub-section (1) of
Section 3, the Minimum Wages fixed in accordance with Clause (a) can be
revised at such intervals which can be of maximum five years. The Proviso
makes it clear that even if the rates of Minimum Wages are not revised for a
period of five years, it will not prevent the State Government from revising
it. If the State Government does not revise the same for unreasonably long
time, it may amount to forced Labour of the concerned Employees thereby
resulting in violation of Articles 21 & 23 of the Constitution of India.
Section 4 which empowers the Government to fix the rates of Minimum
Wages is also relevant which reads thus:

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250 LABOUR LAW NOTES 2021 (1) LLN

“4. Minimum rate of Wages.— (1) Any minimum rate of wages fixed or revised
by the appropriate Government in respect of scheduled employments under
Section 3 may consist of—
(i) a basic rate of Wages and a special allowance at a rate to be adjusted, at
such intervals and in such manner as the appropriate Government may direct,
to accord as nearly as practicable with the variation in the cost of living index
number applicable to such Workers (hereinafter referred to as the “cost of
living allowance”); or
(ii) a basic rate of Wages with or without the cost of living allowance, and the
cash value of the concessions in respect of supplies of essential commodities at
concession rates, where so authorized; or
(iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance
and the cash value of the concessions, if any.
(2) The cost of living allowance and the cash value of the concessions in respect
of supplies of essential commodities at concession rates shall be computed by the
Competent Authority at such intervals and in accordance with such directions as
may be specified or given by the appropriate Government.”
38. The most relevant section for our consideration is Section of the said
Act of 1948 which reads thus:
“5. Procedure for fixing and revising Minimum Wages.— (1) In fixing minimum
rates of Wages in respect of any scheduled employment for the first time under
this Act or in revising minimum rates of wages so fixed, the appropriate
Government shall either—
(a) appoint as many committees and subcommittees as it considers necessary to
hold enquiries and advise it in respect of such fixation or revision, as the case
may be, or
(b) by Notification in the Official Gazette, publish its proposals for the
information of persons likely to be affected thereby and specify a date, not less
than two months from the date of the Notification, on which the proposals will
be taken into consideration.
(2) After considering the advice of the committee or committees appointed under
Clause (a) of sub-section (1), or as the case may be, all representations received
by it before the date specified in the Notification under Clause (b) of that sub-
section, the appropriate Government shall, by Notification in the Official
Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect
of each scheduled employment, and unless such Notification otherwise provides,
it shall come into force on the expiry of three months from the date of its issue:
Provided that where the appropriate Government proposes to revise the
minimum rates of wages by the mode specified in Clause (b) of sub-section (1),
the appropriate Government shall consult the Advisory Board also.”
39. The word ‘either’ used in sub-section (1) of Section 5 clearly
indicates that there are two options provided to the Appropriate Government
under Clause (a) & (b). The Appropriate Government has a discretion either

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 251
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
to take recourse to Clause (a) or Clause (b) of sub-section (1) of Section 5.
Under Clause (a), the Appropriate Government has an option for appointing
a Committee or Sub-Committees to hold an Enquiry and advise the
Government in respect of fixation of Minimum Wages or its revision. The
Appropriate Government has a choice of the aforesaid of two options. If the
option under Clause (b) is opted for, the Appropriate Government has to
publish its proposals of fixation of Minimum Wages for the information of
the persons likely to be affected thereby. When Clause (b) is adopted, it is
mandatory for the Appropriate Government to consult the Advisory Board.
When recourse is taken to Clause (a) of Sub-section (1) of Section 5, still the
Advisory Board has some role to play in view of Section 7 which provides
that the said Board has the responsibility of coordinating the work of
Committees and Sub-Committees appointed under Clause (a) of sub-section
(1) of Section 5 of the said Act of 1948.
The provision regarding composition of the Committees and Advisory
Board is under Section 9 of the said Act of 1948 which reads thus:
“9. Composition of committees, etc.— Each of the committees, sub-committees
and the Advisory Board shall consist of persons to be nominated by the
appropriate Government representing Employers and Employees in the
scheduled employments, who shall be equal in number, and independent persons
not exceeding one-third of its total number of members; one of such independent
persons shall be appointed the Chairman by the appropriate Government.”
40. As can be seen from Clause (a) of sub-section (1) of Section 3 of the
said Act of 1948, the power to fix the rates of Minimum Wages can be
exercised in relation to the Employees employed in the employments
specified in Part-I or Part-II of the schedule to the said Act of 1948 and in
respect of employments added to one of the two parts of the schedule by
exercising the power under Section-27.
Important decisions of the Courts:
41. Before we specifically deal with the submissions canvassed across the
Bar, it will be necessary to refer to some of the well known decisions of the
Apex Court which have interpreted the provisions of the said Act of 1948.
We have already quoted two decisions of the Apex Court which elaborately
lay down the objects sought to be achieved by the said Act of 1948.
42. A leading Judgment on what constitutes the Minimum Wages is in
the case of Reptakos Brett (supra). In Paragraph 8, the Apex Court held that
the wage structure can be divided into three categories - (i) Minimum Wage
which provides bare subsistence, (ii) fair wage and (iii) living wage. The
Apex Court quoted with the approval the five norms for fixation of
Minimum Wages laid down by the Tripartite Committee of the Indian
Labour Conference. The norms were laid down in the year 1957. Apart from
five norms prescribed by the Tripartite Committee, the Apex Court added an

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additional norm. Paragraphs 10, 11, 12 & 13 of the said decision of the Apex
Court which are relevant read thus:
“10. The Tripartite Committee of the Indian Labour Conference held in New
Delhi in 1957 declared the wage policy which was to be followed during the
Second Five Year Plan. The Committee accepted the following five norms for
the fixation of ‘Minimum Wage’:
“(i) In calculating the Minimum Wage, the standard working class family
should be taken to consist of 3 consumption units for one earner; the earnings
of women, children and adolescents should be disregarded.
(ii) Minimum food requirement should be calculated on the basis of a net
intake of calories, as recommended by Dr. Aykroyd for an average Indian adult
of moderate activity.
(iii) Clothing requirements should be estimated at per capita consumption of
18 yards per annum which would give for the average Workers’ family of four,
a total of 72 yards.
(iv) In respect of housing, the rent corresponding to the minimum area
provided for under Government’s Industrial Housing Scheme should be taken
into consideration in fixing the Minimum Wage.
(v) Fuel, lighting and other ‘miscellaneous’ items of expenditure should
constitute 20 per cent of the total Minimum Wage.”
11. This Court in Standard Vacuum Refining Company case, 1961 (3) SCR 536 :
AIR 1961 SC 895 : 1961 (2) LLJ 227, has referred to the above norms with
approval.
12. The concept of ‘Minimum Wage’ is no longer the same as it was in 1936.
Even 1957 is way behind. A Worker’s wage is no longer a contract between an
Employer and an Employee. It has the force of collective bargaining under the
Labour laws. Each category of the wage structure has to be tested at the anvil of
social justice which is the live-fibre of our society today. Keeping in view the
socio-economic aspect of the wage structure, we are of the view that it is
necessary to add the following additional component as a guide for fixing the
Minimum Wage in the industry:
“(vi) children’s education, Medical requirement minimum recreation including
festivals/ceremonies and provision for old age marriages etc. should further
constitute 25 per cent of the total Minimum Wage.”
13. The wage structure which approximately answers the above six components
is nothing more than a Minimum Wage at subsistence level. The Employees are
entitled to the Minimum Wage at all times and under all circumstances. An
Employer who cannot pay the Minimum Wage has no right to engage Labour
and no justification to run the industry.” (underlines supplied)
As per the above dictum of the Apex Court, the wage structure which
approximately answers the above mentioned six components is nothing more
than a Minimum Wage at subsistence level. We must note that five
components laid down by the Tripartite Committee were approved by the

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 253
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Apex Court, in its earlier Judgment in the case of Standard Vacuum
Refining (supra).
43. In the case of Bijay Cotton Mills (supra), the Apex Court considered
the challenge to the Constitutional validity of various provisions of the said
Act of 1948 on the ground of violation of Fundamental Rights guaranteed
under sub-clause (g) of Clause (1) of Article 19 of the Constitution of India.
The argument of the Employer was that the provisions of the said Act of
1948 put unreasonable restrictions upon the rights of the Employer to carry
on business and that Employer has been prevented from carrying on business
or trade unless he is prepared to pay Minimum Wages fixed under the said
Act of 1948. While rejecting the said challenge, in Paragraphs 4 & 5, the
Apex Court held thus:
“4. It can scarcely be disputed that securing of living wages to Labourers which
ensure not only bare physical subsistence but also the maintenance of health and
decency, is conducive to the general interest of the public. This is one of the
Directive Principles of State Policy embodied in Article 43 of our Constitution. It
is well known that in 1928 there was a Minimum Wages Fixing Machinery
Convention held at Geneva and the resolutions passed in that convention were
embodied in the International Labour Code. The Minimum Wages Act is said to
have been passed with a view to give effect to these resolutions [Vide SI Est etc.
v. State of Madras, 1954 (1) MLJ 518, at page 521]. If the Labourers are to be
secured in the enjoyment of Minimum Wages and they are to be protected
against exploitation by their Employers, it is absolutely necessary that restraints
should be imposed upon their freedom of contract and such restrictions cannot
in any sense be said to be unreasonable. On the other hand, the Employers
cannot be heard to complain if they are compelled to pay Minimum Wages to
their Labourers even though the Labourers, on account of their poverty and
helplessness are willing to work on lesser Wages.
5. We could not really appreciate the argument of Mr. Seervai that the provisions
of the Act are bound to affect harshly and even oppressively a particular class of
Employers, who for purely economic reasons are unable to pay the Minimum
Wages fixed by the authorities but have absolutely no dishonest intention of
exploiting their Labourers. If it is in the interest of the general public that the
Labourers should be secured adequate living wages, the intentions of the
Employers whether good or bad are really irrelevant. Individual Employers
might find it difficult to carry on the business on the basis of the Minimum Wages
fixed under the Act but this must be due entirely to the economic conditions of
these particular Employers. That cannot be a reason for the striking down the
law itself as unreasonable.” (underlines supplied)
44. In the case of Chandra Bhawan Boarding (supra), the challenge was
to Clauses (a) & (b) of sub-section (1) of Section 5 of the said Act of 1948
on the ground that the same infringe the Fundamental Rights guaranteed by
Article 14 of the Constitution of India. It was urged that Section 5 confers
unguided and uncontrolled discretion on the Government to follow one of
the two procedures prescribed under Clause (a) & (b) of sub-section (1) of

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Section 5 of the said Act of 1948 to enquire into the matter of fixing the
minimum rates of wages. If recourse to Clause (a) is not taken, then it will
amount to fixing the Minimum Wages arbitrarily. Further, it was contended
that fixation of Minimum Wages is Quasi Judicial act and therefore, the
Principles of Natural Justice must be followed. In the said case, the power of
the appropriate Government to fix the different Minimum Wages for
different industries and its power to fix the different rates of Minimum
Wages for different zones was also questioned. In paragraph 9, the Apex
Court negatived the challenge on the ground that the decision taken by the
Government under sub-section (1) of Section 5 cannot be termed as either
unguided or arbitrary. Paragraph 9 of the decision of the Apex Court read
thus:
“9. We have earlier noticed the circumstances under which the Act came to be
enacted. Its main object is to prevent sweated Labour as well as exploitation of
unorganised Labour. It proceeds on the basis that it is the duty of the State to see
that at least Minimum Wages are paid to the Employees irrespective of the
capacity of the industry or unit to pay the same. The mandate of Article 43 of the
Constitution is that the State should endeavour to secure by suitable legislation
or economic organization or in any other way, to all Workers, agricultural,
industrial or otherwise work, a living wage, conditions of work ensuring a
decent standard of life and full enjoyment of leisure and social and cultural
opportunities. The fixing of Minimum Wages is just the first step in that
direction. In course of time the State has to take many more steps to implement
that mandate. As seen earlier that resolutions of the Geneva Convention of 1928,
which had been accepted by this country called upon the covenanting States to
fix Minimum Wages for the Employees in employments where the Labour is
unorganised or where the wages paid are low. Minimum Wages does not mean
wage just sufficient for bare sustenance. At present the conception of a Minimum
Wage is a wage which is somewhat intermediate to a wage which is just
sufficient for bare sustenance and a fair wage. That concept includes not only
the wage sufficient to meet the bare sustenance of an Employee and his family, it
also includes expenses necessary for his other primary needs such as medical
expenses, expenses to meet some education for his children and in some cases
transport charges etc. see Unnicheyi v. State of Kerala. 1962 (1) SCR 946. The
concept of Minimum Wage is likely to undergo a change with the growth of our
economy and with the change in the standard of living. It is not a static concept.
Its concomitants must necessarily increase with the progress of the society. It is
likely to differ from place to place and from industry to industry. That is clear
from the provisions of the Act itself and is inherent in the very concept. That
being the case it is absolutely impossible for the legislature to undertake the task
of fixing Minimum Wages in respect of any industry much less in respect of an
employment. That process must necessarily be left to the Government. Before
Minimum Wages in any employment can be fixed it will be necessary to collect
considerable data. That cannot be done by the legislature. It can be best done by
the Government. The legislature has determined the legislative policy and
formulated the same as a binding rule of conduct. The legislative policy is
enumerated with sufficient clearness. The Government is merely charged with
the duty of implementing that policy. There is no basis for saying that the

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 255
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
legislature had abdicated any of its legislative functions. The legislature has
prescribed two different procedures for collecting the necessary data, one
contained in Section 5(1)(a) and the other in Section 5(1)(b). In either case it is
merely a procedure for gathering the necessary information. The Government is
not bound by the advice given by the committee appointed under Section 5(1)(a).
Discretion to select one of the two procedures prescribed for collecting the data
is advisedly left to the Government. In the case of a particular employment, the
Government may have sufficient data in its possession to enable it to formulate
proposals under Section (5)(1)(b). Therefore it may not be necessary for it to
constitute a committee to tender advice to it but in the case of another
employment it may not be in possession of sufficient data. Therefore, it might be
necessary for it to constitute a committee to collect the data and Tender its
advice. If the Government is satisfied that it has enough material before it to
enable it to proceed under Section 5(1)(b) it can very well do so. Which
procedure should be adopted in any particular employment depends on the nature
of the employment and the information the Government has in its possession
about that employment. Hence the powers conferred on the Government cannot
be considered as either unguided or arbitrary. In the instant case as seen earlier
the question of fixing wages for the various categories of Employees in
residential hotels and eating houses was before the Government from 1960 and
the Government had taken various steps in that regard. It is reasonable to assume
that by the time the Government published the proposals in pursuance of which the
impugned Notification was issued it had before it adequate material on the basis of
which it could formulate its proposals. Before publishing those proposals, the
Government had consulted the advisory committee constituted under Section 7.
Under those circumstances we are unable to accede to the contention that either
the power conferred under Section 5(1) is an arbitrary power or that the same had
been arbitrarily exercised”. (underlines added)
The Apex Court did not specifically examine the question whether the power
to grant Minimum Wages is a Quasi Judicial power or not. The Apex Court
dealt with the contention that after the proposals containing the rates of
Minimum Wages are published, the State Government was not competent to
enhance the rates of Minimum Wages. In Paragraph 15, the Court held thus:
“15. Taking into consideration the provisions of the Act, the objective behind the
Act, the purposes intended to be achieved and the high authority on whom the
power is conferred, we have no doubt that the procedure adopted was adequate
and effective. We have equally no doubt that reasonable opportunity had been
given to all the concerned parties to represent their case. We are unable to agree
that the impugned Order is vitiated because of the Government’s failure to
constitute a committee under Section 5(1)(a). We see no substance in the
contention that the Government is not competent to enhance the rate of wages
mentioned in the proposals published. If it has power to reduce those rates, as
desired by the Employers, it necessarily follows that it has power to enhance them.
There is no merit in the contention that the Government must go on publishing
proposals after proposals until a stage is reached where no change whatsoever is
necessary to be made in the last proposal made”. (underlines supplied)

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In the above case, the Apex Court held that different zones can be fixed on
rational basis.
45. Another decision which is relevant is in the case of Unichoyi (U)
(supra) in which again, the Apex Court considered what are the components
of Minimum Wages. In paragraph 13, the Apex Court has considered this
aspect and ruled thus:
“13. It is, therefore, necessary to consider what are the components of a
Minimum Wage in the context of the Act. The evidence led before the
Committee on Fair Wages showed that some witnesses were inclined to take the
view that the Minimum Wage is that wage which is essential to cover the bare
physical needs of a Worker and his family, whereas the overwhelming majority
of witnesses agreed that a Minimum Wage should also provide for some other
essential requirements such as a minimum of education, medical facilities and
other amenities. The Committee came to the conclusion that a Minimum Wage
must provide not merely for the bare subsistence of life but for the preservation
of the efficiency of the Worker, and so it must also provide for some measure of
education, Medical requirements and amenities. The concept about the
components of the Minimum Wage thus enunciated by the Committee have been
generally accepted by Industrial Adjudication in this country. Sometimes the
Minimum Wage is described as a bare Minimum Wage in order to distinguish it
from the wage structure which is ‘subsistence plus’ or fair wage, but too much
emphasis on the adjective “bare” in relation to the Minimum Wage is apt to lead
to the erroneous assumption that the maintenance wage is a wage which enables
the Worker to cover his bare physical needs and keep himself just above
starvation. That clearly is not intended by the concept of Minimum Wage. On the
other hand, since the capacity of the Employer to pay is treated as irrelevant, it
is but right that no addition should be made to the components of the Minimum
Wage which would take the Minimum Wage near the lower level of the fair
wage, but the contents of this concept must ensure for the Employee not only his
sustenance and that of his family but must also preserve his efficiency as a
Worker. The Act contemplates that Minimum Wage rates should be fixed in the
scheduled industries with the dual object of providing sustenance and
maintenance of the Worker and his family and preserving his efficiency as a
Worker.” (underlines added)
On the question of interference by the Writ Court with the Minimum Wages
fixed by the appropriate Government, the Apex Court, in Paragraph 17 of the
said decision held thus:
“17. Mr. Nambiar no doubt wanted to attack the merits of the Notification on the
ground that the wage rates fixed by it are unduly high. In that connection he
relied on the fact that the Minimum Wage rates prescribed by the Madras
Government by its Notification published on February 25, 1952, as well as the
wage rates prevailing in other industries in Kerala were slightly lower. He also
pointed out that the wage rates awarded by industrial adjudication and even the
claims made by the Employees themselves would tend to show that what has
been awarded by the Notification is higher than the prescribed Minimum Wages.
It is not possible for us to entertain this contention. The determination of

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 257
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Minimum Wages must inevitably take into account several relevant factors and
the decision of this question has been left by the Legislature to the Committee
which has to be appointed under the Act. We have already referred to the
composition of the Committee and have reviewed very briefly its report. When a
Committee consisting of the representatives of the industry and the Employees
considers the problem and makes its recommendations and when the said
recommendations are accepted by the Government, it would ordinarily not be
possible for us to examine the merits of the recommendations as well as the
merits of the wage structure finally notified by the Government. The Notification
has accepted the recommendations of the Committee to categorise the Workers
and that obviously was overdue. The fact that wages paid in other industries in
Kerala, or in other States in comparable concerns, are lower and would have
been relevant for the Committee to consider when it made its recommendations.
In appreciating the effect of the prevalence of lower rates it may also be relevant
to bear in mind that in some places and in some industries, Labour is still
employed on wages much below the standard of minimum rates. In fact, in its
report the Committee has pointed out that in Kerala the bargaining position of
the Workers has all along been very weak and wages have tended to remain in a
deplorably low level. Therefore, the fact that lower wages are paid in other
industries or in some other places may not necessarily show that the rates
prescribed by the Notification are unduly high. In any event these are
considerations which ordinarily cannot be entertained by us because obviously
we are not sitting in Appeal over the recommendations of the Committee or the
Notification following upon them. That is why the grievance made by Mr.
Nambiar on the merits of the wage structure prescribed by the Notification
cannot succeed.” (underlines supplied)
The Apex Court was of the view that when the Committee consisting of the
representatives of the Industry/Employers and the representatives of the
Employees considers the problem and makes its recommendations and when
the recommendations are accepted by the Government, it would ordinarily
not be possible for the Writ Court to examine the merits of the
recommendations as well as the merits of the wage structure finally notified
by the Government.
46. Another case which needs to be noted at this stage is People’s Union
for Democratic Rights and others v. Union of India and others, 1982 (2)
LLN 410 (SC) : AIR 1982 SC 1473, which is popularly known as ‘Asian
Games Workers’ case’. In the said decision, the Apex Court held that when
an Employer provides Labour or service to another for a remuneration which
is less than the prescribed Minimum Wages, the Labour or service provided
by the Employer clearly falls within the scope and ambit of the words
“forced Labour” under Article-23.
47. In its decision in the case of Association of Planters of Kerala v.
State, 1996 (1) LLN 403 (Ker) : 1996 (74) FLR 2288, the Kerala High Court
held that in view of the provisions of Section 3(1)(b) & Article 23, it is the
duty of the appropriate Government to revise the rates of Minimum Wages
retrospectively.

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48. In the case of Ministry of Labour and Rehabilitation (supra), the

Apex Court held that Notification fixing the rates of Minimum Wages are
not be lightly interfered with under Article 226 of the Constitution of India
on the ground of some irregularities in constitution of the Committee or in
the procedure adopted by the Committee. It was held that the Committee acts
only as a recommendatory body to recommend the structure of Minimum
Wages and ultimately, the decision has to be taken by the appropriate State
Government. It was also held that a Notification fixing Minimum Wages, in
a country where wages are already minimal, should not be interfered with
under Article 226 of the Constitution of India except on the most substantial
of grounds. It was held that the Minimum Wages fixed pursuant to the social
welfare legislation undertaken to further the Directive Principles of State
Policy cannot be struck down on the ground of mere technicalities.
49. In the light of the broad legal principles laid down by the Apex Court
as well as the High Court which are referred above, now we proceed to deal
with the submissions canvassed by the respective counsel on merits of the
controversy.
Consideration of submissions: Legality of withdrawal of four Notifications:
50. Firstly, we deal with the issue involved in Writ Appeal No.1520 of
2019. This Appeal arose out of Writ Petition No.18621/2018 filed by the
Union. In the said Writ Petition, the challenge was to the Order/Notification,
dated 22nd March 2018 passed by the State Government, withdrawing four
Notifications. By the said order, the four Notifications were withdrawn with
immediate effect. The English translation of the said Notification reads thus:
“Proceedings of the Government of Karnataka
Sub : Regarding formation of tripartite committee to decide withdrawal of
Notification issued under provisions of Minimum Wages Act, 1948 Section
(1)(b) and fixing of Minimum Wages as per Minimum Wages Act, 1948 Section
5(1)(b) for the four notified trades of “Spinning Mill Industries, Cloth Dyeing
and Printing, Tailoring Industry and Textile (Silk) Industry.
Read with: Letter No.Ka.VeKa-2/Eathare-33/Spi.Mi/2017-18, dated 1.2.2018 of
Labour Commissioner:
Preamble: With reference to the above, while comparing the Minimum Wages as
published in the final Notification, dated 30.12.2017 by the Government of
Karnataka with Minimum Wages of other States in respect of “Spinning Mill
Industries, Cloth Dyeing and Printing, Tailoring Industry and Textile (Silk)
Industry” is observed to be higher and this would affect adversely the trade, the
Textile and Garments industry is facing competition at the international level, in
this Trade Labour expenses being 25 to 30 percent, it was appealed by the
Employers that this Notification be withdrawn.
The Appeal was forwarded to Labour Commissioner for information and
instructed to furnish report. Hence, the Labour Commissioner has furnished the
report under reference. It is explained that works in Spinning Mill Industries,

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 259
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Cloth Dyeing and Printing, Tailoring Industry and Textile (Silk) Industry being
similar in nature, if all these specified employments notified industries are in one
section, when Workers receive differing wages, discrimination feeling would
arise, Industrial Disputes may emerge. Hence, Minimum Wages revised in one
stretch, chances of arising of Industrial Disputes is less. Considering these
aspects specified employments in “Spinning Mill Industries, Cloth Dyeing and
Printing, Tailoring Industry and Textile (Silk) Industry and Tailoring Industries
may fix common Minimum Wages, withdrawal of Notification under Minimum
Wages Act, 1948 Section 5(1)(b), to constitute a tripartite committee under
Minimum Wages Act 1948 Section 5(1)(a).
Government of Karnataka has taken action to revise Minimum Wages for these
four (4) scheduled employments.
Table-1 Minimum Wages Notification of Government of Karnataka
Sl. Scheduled Notification No. and Remarks
No. employment in Date
1. Textiles (Silk) KaEe 22 LMW 2017, Final Notification issued
Industry dated 30.12.2017
2. Spinning Mills KaEe 21 LMW 2017, Final Notification issued
Industry dated 30.12.2017
3. Clothing Dyeing KaEe 29 LMW 2017, Final Notification issued
and Printing dated 30.12.2017
Industry
4. Tailoring KaEe 76 LMW 2017, Draft Notification Released
Industry dated 22.2.2018
The above Notifications are issued as per Minimum Wages Act, 1948 Section
(1)(b). In the combined Textile industry, rates of Minimum Wages finalized for
some scheduled employments and for others the processes of fixing Minimum
Wages are under revision. The Government is convinced that this may lead to
discrimination in the Workers in the combined Textile industry and create
industrial relation problems. In this background, the Government in exercise of
the powers conferred under Minimum Wages Act 1948 has decided to withdraw
the above Notifications in Table-1. In the same circumstance, the Government in
exercise of its powers conferred by the Minimum Wages Act, 1948 Section
5(1)(a) has decided to constitute general tripartite committee to revise common
Minimum Wages for the combined scheduled employments indicated in Table-1,
and constituted the tripartite committee vide Government Order No.KaEe21
LMW 2017, Bengaluru, dated 22.3.2018.
Considering the Labour Commissioners preludes and all related factors, the
following order is issued.
Government Order No.KaEe 21 LMW 2017 (1), Bengaluru
date 22.3.2018
In the background of the above proposal, the following Notifications are
withdrawn with immediate effect. It is ordered that till the Government issues
further Notification based on the report of the tripartite committee, for the

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260 LABOUR LAW NOTES 2021 (1) LLN

scheduled employment applicable Minimum Wages as per existing Minimum

Wages Notifications would be implemented.
Sl. Scheduled Notification No Remarks
No. employment in and Date
1. Spinning Mills KaEe 21 LMW Final Notification
Industry 2017, dated withdrawn
30.12.2017
2. Cloth Dyeing and KaEe 21 LMW Final Notification
Printing Industry 2017, dated withdrawn
30.12.2017
3. Textile (Silk) KaEe 29 LMW Final Notification
Industry 2017, dated withdrawn
30.12.2017
4. Tailoring Industry KaEe 76 LMW Final Notification
2017, dated withdrawn
22.2.2018
By order in the name of
The Governor of Karnataka
Sd/-
(G.M. Siddaraju)
Under Secretary to Government, Labour Department.
Date: 22.3.2018” (Underline added)
51. As stated therein, the first, second and third Notifications withdrawn
were of 30th December 2017 issued under sub-section (2) of Section 5 of the
said Act of 1948, fixing the rates of Minimum Wages in respect of (i) Textile
(silk) industry, (ii) Spinning Mills Industry and (iii) Cloth Dyeing and
Printing Industry. The fourth Notification which was withdrawn is of 22nd
February 2018 which is not a final Notification but it is a Draft Notification
issued by the Government, as contemplated by Clause (b) of sub-section (1)
of Section 5 of the said Act of 1948, by which, the State Government
published its proposals for revision of Minimum Wages in respect of the
Textile Manufacturing (Garments, Costumes and Tailoring) Industry. It is
observed in the impugned Notification/order of withdrawal of the four
Notifications that the rates of Minimum Wages fixed under three
Notifications, dated 30th December 2017, in respect of the aforesaid three
industries were higher than the rates of Minimum Wages fixed in the other
States. It is also observed therein that an Appeal was made by the Employers
seeking withdrawal of the Notification. Therefore, a report was called from
the Labour Commissioner and ultimately, it was decided to withdraw the
Notifications and resolved to constitute Tripartite Committees, as
contemplated under Clause (a) of sub-section (1) of Section 5.
52. It must be noted here that by the said three withdrawal Notifications,
dated 30th December 2017, the rates of Minimum Wages fixed there under

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 261
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
were made effective from the date of publication of the said Notifications.
Thus, in the Writ Petition subject matter of Writ Appeal No.1520/2019, the
issue raised was regarding the existence of power vesting with the State
Government to withdraw a final Notification as well as a draft Notification.
The submission of the Appellants is that a vested right was created in favour
of the Employees with effect from 30th December 2017, as the Employees
became entitled to Minimum Wages fixed under the three final Notifications
with effect from 30th December 2017 and said vested rights could not be
taken away nearly three months thereafter by issuing the impugned
Notification on 22nd March 2018.
53. The learned Single Judge negatived the challenge to the impugned
Notification of withdrawal for the reasons contained in paragraph 25 of the
impugned Judgment. Firstly, the learned Single Judge held that by exercising
power under Section 21 of the General Clauses Act, 1897 or Section 21 of
the Mysore General Clauses Act, 1899, the Notifications could not have
been withdrawn, as the same created a vested right in the Employees.
However, the learned Single Judge, by referring to the power of the State
Government under Clause (b) of sub-section (1) of Section 3 of the said Act
of 1948 which empowers the Government to review the Minimum Wages
fixed, held that as the impugned Notification/Order mentioned the reasons
necessitated for such review, the withdrawal of the said Notifications
amounts to review and it was a step in aid of revising the Minimum Wages.
The learned Single Judge held that the power to fix the Minimum Wages is
not a Quasi Judicial power and such exercise of fixing the Minimum Wages
is a Legislative/Quasi Legislative function. Therefore, there was no question
of giving an opportunity of being heard to the Employees affected by such
withdrawal.
54. Firstly, we deal with the arguments based on Section 21 of the
General Clauses Act, 1897 (for short “the said Act of 1897). Section 21 of
the said Act reads thus:
“21. Power to issue, to include power to add to, amend, vary or rescind
Notifications, Orders, Rules or By-laws.— Where, by any Central Act or
Regulations a power to issue Notifications, orders, rules or by-laws is conferred,
then that power includes a power, exercisable in the like manner and subject to
the like sanction and conditions if any, to add to, amend, vary or rescind any
Notifications, orders, rules or bye-laws so issued.” (underlines supplied)
55. Section 21 of the said Act has been judicially interpreted in several
decisions of the Apex Court and those decisions were considered by a
Division Bench of this Court, in the case of L &T Komatsu Ltd. (supra).
After considering large number of the decisions of the Apex Court, in
paragraph 38, the Division Bench summarized the law as under:
“38. From the aforesaid discussion it is clear that Section 21 of the General
Clauses Act applies only when in an enactment there is no specific provision

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262 LABOUR LAW NOTES 2021 (1) LLN

providing for what is provided in Section 21 of the Act. In order to find out
whether such a provision exists, the scheme of the Act is to be scrutinized. If
there is no indication of any such power expressly or by implication then Section
21 of the General Clauses Act has to be read into the said enactment. If an order
is passed under a particular statute and if it is given effect to, acted upon,
consequential further steps are taken in accordance with law, and Third party
interests are created, then rescinding or revoking such an order, at that stage,
would have serious consequences. Then in those circumstances it cannot be said
that the power to issue Notification includes the power to rescind or revoke. In
the absence of a specific provision providing for such recession or revocation
and an express or implied bar for such recession or revocation, Section 21 of the
General Clauses Act applies, and such a power is to be read into such enactment.
Otherwise, the very object of enacting this piece of Legislation becomes
redundant. Ultimately the applicability of Section 21 of the Act depends on the
scheme of the Act, the nature of power conferred, the object sought to be
achieved and the language employed in the said provision. Broadly stated,
Section 21 of the Act, applies as a rule, non-application is an exception. To
exclude the application of the general rule, there must be an exceptional
circumstance. Section 21 is based on the principle that power to create includes
the power to destroy and also the power to alter what is created. The power to
rescind a Notification is inherent in the power to issue the Notification without
any limitations or conditions. Section 21 embodies a rule of construction. The
nature and extent of its application must be governed by the relevant statute
which confers the power to issue the Notification. When a power is conferred on
an authority to do a particular act, such power can be exercised from time to time
and carries with it the power to withdraw, modify, amend or cancel the
Notifications earlier issued, to be exercised in the like manner and subject to like
conditions, if any, attached with the exercise of the power. This legal position is
in no way denuded merely because the Notification issued under an enactment
was the subject matter of litigation and the validity of such Notification has been
upheld by a Court.” (underlines supplied)
56. As held by the Division Bench of this Court, Section 21 will apply
only when in a statute, there is no specific provision providing for what is
provided in Section 21. Section 21 provides that when there is a power to
issue Notifications or Orders, such power includes a power to vary or rescind
such Notifications or Orders. However, the said power to vary or rescind is
exercisable in the like manner and subject to like conditions, on which, the
Notifications or orders are issued. The decision of the Division Bench holds
that power conferred under Section 21 can be exercised only when there is
no specific provision to do what can be under Section 21 of the said Act of
1897. The exception to the exercise of power under Section 21 of rescinding
Notifications or orders is in a case where an order passed under a particular
statute is already given effect and Third party interests are created. The
reason is that in such a case, the exercise of the power of rescinding the
Notifications or Orders will have serious consequences. In such contingency,
it cannot be said that the power to issue Notifications includes the power to
rescind or revoke the same.

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 263
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
57. Therefore, we will have to ascertain whether under the said Act of
1948, there is a power to do what can be done under Section 21 of the said
Act of 1897. Under Clause (b) of sub-section (1) of Section 3 of the said Act
of 1948, which is already quoted above, the appropriate Government is
empowered not only to fix the rates of Minimum Wages but also to revise
the rates of Minimum Wages, if necessary. As can be seen from sub-section
(2) of Section 5, it confers on the appropriate Government, a power to fix the
rates of Minimum Wages in respect of the scheduled employment and power
to revise such rates of Minimum Wages. In the case on hand, the statute has
itself conferred a power on the appropriate Government to review/revise the
rates of Minimum Wages and such power also includes power to increase or
reduce the rates of Minimum Wages. Therefore, when a final Notification is
issued under sub-section (2) of Section 5 of the said Act of 1948 of fixing or
revising the rates of Minimum Wages in respect of a scheduled employment,
the power to revise the same either by enhancing the rates or reducing the
rates vests with the Appropriate Government. There is a power to revise the
rates of Minimum Wages even by reducing the same by exercise of power
conferred under sub-section (2) of Section 5, after following the procedure
under sub-section (1) of Section 5. The power to review or revise the
Minimum Wages fixed, however, cannot be exercised by withdrawing the
final Notifications. Hence, the act of withdrawal of the final Notifications
cannot be termed as a step in aid of revision of the rates. The revision can be
made only by following the procedure prescribed in Section 5 of the said Act
of 1948. Therefore, in case of a final Notifications fixing the rates of
Minimum Wages under sub-section (2) of Section 5, there is a specific
power conferred on the Government to review or revise the same and
therefore, in case of final Notifications issued fixing the rates of Minimum
Wages, for revising or reviewing the same, recourse to Section 21 of the said
Act of 1897 cannot be taken. However, in case of a Notification published
under Clause (b) of sub-section (1) of Section 5 of the said Act of 1948, by
which, the proposals of the State Government are published, the legal
position may be different which we are discussing separately.
58. Even assuming that the power under Section 21 of the said Act of
1897 can be exercised for rescinding the final Notifications issued fixing the
rates of Minimum Wages, as provided in Section 21, the procedure
prescribed under Section of 5 of said Act of 1948 which is required to be
adopted for revising the rates of Minimum Wages will have to be followed.
Therefore, the action of the withdrawing the Notifications could not have
been taken only on the basis of the report of the Labour Commissioner, but
the State Government was required to follow the procedure prescribed by
Section 5 which is applicable for fixing the rates of Minimum Wages either
for the first time or for revising the same. Therefore, even assuming that the
State Government could have invoked Section 21 of the said Act of 1897,
the State Government was required to follow the procedure under Section 5

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264 LABOUR LAW NOTES 2021 (1) LLN

of the said Act of 1948 by taking recourse either to Clause (a) or Clause (b)
of sub-section (1) of Section 5 before rescinding the final Notifications. In
the case in hand, that was admittedly not done.
59. Even assuming that the power under Section 21 of the said Act of
1897 could be exercised for rescinding the final Notifications issued for
fixing the rates of Minimum Wages, in the facts of the case, the three
Notifications, dated 30th December 2017 which came into force on 30th
December 2017 vested a right in the Employees of the concerned industries
in respect of which Notifications were issued, entitling them to get the
Minimum Wages at the rates fixed by the said three Notifications. Hence,
the vested right created in the Employees to get the wages as per the rates
fixed under the three final Notifications could not be taken away without
revising the rates as provided under Section 3 read with Section 5 the said
Act of 1948. The vested right could not have been taken away by taking
recourse to Section 21 of the said Act of 1897. Therefore, as held by the
Division Bench of this Court, in the case of L and T Komatsu (supra), the
three Notifications could not be rescinded by exercising the power under
Section 21 of the said Act of 1897, as the right vested in Employees cannot
be taken away by exercise of such power. Hence, the action of withdrawal of
the said three Notifications is ultra virus the provisions of the said Act of
1948 as well as the said Act of 1897 and is liable to be set aside.
60. However, the situation in case of the fourth withdrawn Notification
being a draft Notification, dated 22nd February 2018 in respect of Tailoring
industry is different. The said Notification did not fix the rates of Minimum
Wages but, by the said Notification, only the proposals of the State
Government of fixing the rates of Minimum Wages were published in
accordance with Clause (b) of sub-section (1) of Section 5. Thus, it was a
draft Notification published proposing to revise the rates of Minimum
Wages in case of Tailoring Industry and the proposed rates were mentioned
therein. While fixing the rates of Minimum Wages after consulting the
Advisory Board, the State Government had a power to enhance or reduce the
rates mentioned in the draft Notification. The Notification, dated 22nd
February 2018 contained only a proposal to revise the rates of Minimum
Wages fixed earlier and therefore, while issuing final Notification, the State
Government had a power to reduce the rates of Minimum Wages mentioned
in the draft Notification. As the reason for withdrawal of the said
Notification was that the proposed rates of Minimum Wages mentioned
therein were on the higher side, the said rates could have been reduced while
issuing the final Notification. Therefore, the Statute itself confers a power on
the Appropriate Government to do something which could have been done in
exercise of the powers under Section 21 of the said Act of 1897. Hence,
recourse to the power under Section 21 could not have been taken for
withdrawing the draft Notification. Therefore, withdrawal of the draft

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 265
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Notification also cannot be sustained as even this action is ultra virus the
provisions of the said Act of 1948 as well as under the said Act of 1897.
61. On 23rd August 2019, submissions in this group of Appeals were
heard and therefore, further action taken by the State Government on the
basis of the withdrawal of the Notifications by the Order, dated 22nd March
2018 was always subject to final outcome of this Appeal. The State
Government, during the pendency of the Appeal, in pursuance of the
directions issued by the learned Single Judge under the impugned Judgment
and Order, had published a fresh Notification, dated 31st October 2019 after
taking recourse to Clause (b) of sub-section (1) of Section 3 read with Clause
(a) of sub-section (1) of Section 5, for fixing the rates of Minimum Wages in
respect of the Spinning Mills. Another final Notification was published on
the same day for fixing the rates of Minimum Wages in respect of Garments,
Costumes and Tailoring industry. The third final Notification was also issued
on the same date, fixing the rates of Minimum Wages in respect of Cloth
Dyeing and Printing industry. The fourth Notification was published fixing
the rates of Minimum Wages in respect of Textiles (Silk) industry. The final
Notifications in relation to Textiles (Silk) industry, Spinning Mills Industry,
Cloth Dyeing and Printing were made effective from 30th December 2017
i.e., the date on which the earlier three final Notifications were withdrawn
were brought into force. The Notification in respect of Tailoring industry
was also brought into force with effect from 30th December 2017. As we
have already held that those three final Notifications, dated 30th December
2017 were illegally withdrawn, the corresponding three final Notifications
issued during the pendency of these Appeals on 31st October 2019 in respect
of the same industries will be of no legal effect. We have held that the draft
Notification in respect of Tailoring industry was illegally withdrawn. Hence,
the final Notification, dated 31st October 2019 in respect of the said
Tailoring industry will have no effect at all. As the three final Notifications,
dated 30th December 2017 will stand revived, the corresponding new
Notifications, dated 31st October 2019 will be rendered inoperative,
inasmuch as, there cannot be two sets of Notifications in respect of the same
industries fixing the different rates from 30th December 2017. As the
Preliminary Notification of 22nd February 2018 in case of Tailoring industry
will stand revived, the final Notification, dated 31st October 2019 will be
rendered inoperative. Hence, the State Government will have to take further
steps on the basis of the revived draft Notification in accordance with sub-
section (2) of Section 5. In case of revived Notifications, dated 30th
December 2017, the State Government can always take action of revision of
the rates fixed therein in accordance with the law. The said action can be
taken on its own or on the application made by the Employers. To the above
extent, the Writ Appeal No.1520/2019 will have to be allowed in part.
Considerations of submissions in the Appeals by Employers:

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266 LABOUR LAW NOTES 2021 (1) LLN

Approach of the Court, while dealing with submissions and the issue of
nature of power exercised by the appropriate Government:
62. By the impugned Notifications challenged by the Employers, the rates
of Minimum Wages were approximately enhanced by `8,000 to `15,000 per
month after the lapse of 4 to 5 years. Only in case of Doctors, the
enhancement was more as it was fixed at `40,908.40 per month with effect
from 30th December 2017 which cannot be per se excessive. The concept of
Minimum Wages is not a static concept. 72 years back when the said Act of
1948 was enacted, the said concept was different. Thereafter, it has gradually
changed. The world has changed very fast during the last decade. The
concept of necessities of life has undergone a drastic change. The concept of
what is required for subsistence has also changed. The rate of Minimum
Wages must be such that it ensures health and decency which concepts have
also undergone a change. In the case of Workmen v. Reptakos Brett and Co.
(supra), in Paragraph 25, it was observed as under:
“25. in any case we are of the opinion that purchasing power of today’s wage
cannot be judged by making calculations which are solely based on 30/40 years
old wage structure. The only reasonable way to determine the category of wage
structure is to evaluate each component of the category concerned in the light of
the prevailing prices. There has been sky-rocketing rise in the prices and the
inflation chart is going up so fast that the only way to do justice to the labor is to
determine the money value of various components of the Minimum Wage in the
context of today.” (Underline supplied)
The aforesaid principles will have to be kept in mind, when we decide the
challenge by the Employers. If we peruse the submissions made by the
Employers, it can be said that most of the submissions are made on the
footing that this Court is going to act as the Appellate Authority. We will
have to examine the challenge by Employers, by keeping in mind the
changing world and the well settled constraints on the exercise of writ
jurisdiction in the matters involving fixation of Minimum Wages. Looking to
the scheme of the said Act of 1948, it appears that the Legislature has left the
act of determination of the rates of Minimum Wages to the Appropriate
Government. If we look at Section 5, the exercise of the power by the
Appropriate Government of fixing the rates of Minimum Wages is neither
Quasi-Judicial nor administrative. The Legislature has delegated its power to
the Appropriate Government to fix the rates of Minimum Wages. Hence,
fixation of Minimum Wages is a legislative function. In the case of
Mangalore Ganesh Beedi (supra), it was held by a Division Bench of this
Court that the Minimum Wage fixation is a legislative act. Hence, it follows
that the requirement of giving reasons and giving hearing are ruled out.
The contention that not adopting option under Clause (A) of sub-section (1)
of Section 5 was discriminatory:

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 267
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
63. Now we go to the arguments canvassed in the Appeals preferred by
the Employers. There was one argument canvassed especially in Writ
Appeal No.1681-1682/2019 that out of two options available to the State
Government under Clause (a) & (b) of sub-section (1) of Section 5 of the
said Act of 1948, the option under Clause (a) ought to have been adopted.
The other argument is that in case of four industries in respect of which the
Notifications issued earlier were withdrawn, the State Government has taken
recourse to Clause (a) of sub-section (1) of Section 5 of the said Act of 1948
by appointing Tripartite Committees to hold Enquiry and advise the
Government in respect of fixation or revision of rates of Minimum Wages.
The submission of the learned Counsel appearing for the Appellant in Writ
Appeal No.1681/2019 was that the action of adopting option of Clause (a) of
sub-section (1) Section 5 in case of selected four (04) industries and the
action of the Government of adopting the option under Clause (b) of sub-
section (1) of Section 5 in respect of other industries is a hostile
discrimination which is violative of Article 14 of the Constitution of India.
He submitted that in case of four Notifications which were withdrawn, the
State Government has now fixed very reasonable rates of Minimum Wages
after considering the advice of the Tripartite Committees.
64. We have already recorded our conclusions on the issue of the
Appropriate Government’s power to take recourse to either of the two
options contemplated under sub-clauses (a) & (b) of sub-section (1) of
Section 5. The procedure for fixing the rates of Minimum Wages for the first
time or for revising the same has been laid down therein. The word ‘either’
is used in sub-section (1) of Section 5. Therefore, there are two options
available to the appropriate Government under the statute. One is under
Clause (a) and another is under Clause (b). Where recourse is taken under
Clause (a) of sub-section (1) of Section 5 for fixing or revising the rates of
Minimum Wages, the State Government has to consider the advice of the
Committee or Committees constituted under Clause (a). Where an option
under Clause (b) is exercised, a Notification containing the proposed rates of
Minimum Wages is required to be published. As narrated earlier, by
publishing a Notification in the Official Gazette, the proposed rates are
required to be notified and the date of its effect is required to be specified in
the Notification inviting representations in respect of such proposed rates.
After considering the representations so received and after consulting the
Advisory Board constituted under Section 7, the State Government is
required to take a decision of fixing the rates of Minimum Wages.
Ultimately, the power is vested with the Government to fix the rates of
Minimum Wages. By appointing/constituting the Committees under Clause
(a) or by following the procedure under Clause (b) of sub-section (1) of
Section 5, all that the Government gets is the factual details or data as well
as the views of all the stake holders. It is necessary to look at the
composition of the Committee and the composition of the Advisory Board as

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provided in Section 9. Perusal of Section 9 shows that, both in the

Committee and in the Advisory Board, there is a representation given to both
the Employers and Employees and there are independent persons as well. It
can be said that both the Committee and the Advisory Board only render
advice to the State Government. They collect the data for the Appropriate
Government. In case of Advisory Board, the practice followed is that even
the representations made on the basis of the draft Notifications under Clause
(b) of sub-section (1) of Section 5 are placed before it. When the statute
itself provides for two options, merely because the State exercises one option
in case of one category of industry and the other option in case of other
categories of industries, the action taken by the Government cannot be held
to be discriminatory. Different yardsticks will have to be applied to different
industries. It will not amount to violation of Article 14 of the Constitution.
65. At this juncture, it is necessary to refer to the dictum of the Apex
Court in the case of Chandra Bhavan (supra) wherein there was a specific
challenge to the constitutional validity of the provisions of sub-section (1) of
Section 5 of the said Act of 1948 on the ground that it was arbitrary and
violative of Article 14 of the Constitution of India, as it confers unguided
and uncontrolled discretion on the Appropriate Government to follow either
of the alternative procedures prescribed in Clauses (a) & (b) of sub-section
(1) of Section 5 of the said Act of 1948. The challenge was rejected by the
Apex Court for the reasons recorded in Paragraph 9 of the Judgment, which
we have already quoted. As observed in the said Judgment, when two modes
are provided in the Statute under Clauses (a) & (b) for collecting the
necessary data, the Appropriate Government is empowered to opt for either
of options. In either case, it is merely a procedure for gathering the necessary
information/data which will be useful for the State Government in fixing the
rates of Minimum Wages. Therefore, as observed by the Apex Court, which
procedure should be adopted in case of a particular employment depends
upon the nature of the employment and the information the Government has
in its possession about such employment. Thus, giving choice of the two
alternatives to the Government under Clause (a) & (b) of sub-section (1) of
Section 5 of the said Act of 1948 is not at all arbitrary, as held by the Apex
Court.
66. The contention of the learned Counsel is that in case of few
industries, the Government has opted for the option under Clause (a) and has
opted for the option under Clause (b) in respect of other industries which is
discriminatory. As held by the Apex Court, when the statute itself confers a
choice of such options on the State Government as provided in Clauses (a) &
(b) of sub-section (1) of Section 5 of the said Act of 1948, opting for either
of the options by the Government cannot be termed as violative of Article 14
of the Constitution of India and therefore, the Employers cannot find fault
with the action of the Government in adopting the option under Clause (a) in
respect of four industries and taking recourse to Clause (b) in respect of

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 269
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
other industries. Therefore, the argument canvassed by the learned Counsel
for the Employer, based on the discrimination, cannot be accepted.
Arguments on the illegality in the constitution of the advisory board and the
illegality in the proceedings of the board:
67. Another argument canvassed is in respect of improper constitution of
composition of the Advisory Board. The argument, in substance is that the
representatives of the Employer and Employees were not equal in number.
The argument is that it was not clear whether one particular member is a
representative of the Employers or Employees or that whether he is an
independent member. In the case of Ministry of Labour and Rehabilitation
(supra), the Apex Court held that the Committee constituted under Clause (a)
of sub-section (1) of Section 5 of the said Act of 1948 acts only as a
recommendatory body and final decision of fixing the rates of Minimum
Wages has to be made by the Government with reference to the facts of the
case. The Apex Court held that the exercise of fixing the rates of Minimum
Wages should not be interfered with in exercise of Writ jurisdiction under
Article 226 of the Constitution of India solely on the basis of the
irregularities in constitution of the Committees or on the ground of mere
technicalities, as the case may be. The same view is taken by the Apex Court
in the case of Edward Mills (supra). The same law must apply to the
Advisory Board. We must note here that assuming that there was no equal
representation to the Employers and Employees on the Board, it will be a
mere technicality. Moreover, while we deal with the argument of the
Employers, we must note that the representatives of the Federation of
Karnataka Chamber of Commerce and Industry (‘FKCCI’), Karnataka Small
Scale Industries Association (‘KSSIA’) and Karnataka Employers’
Association (KEA) were, admittedly, a part of the Minimum Wages
Advisory Board. The averments made in the Writ Petitions filed by the
FKCCI show that it had membership of large number of Employers of
different categories. The same is the case with KSSIA and KEA. Thus, the
Employers had a strong representation in the form of the representatives of
their Associations.
68. Another argument was that one person by name Mr. Raja Mohammad
who was earlier nominated to be a representative of Employees was re-
designated as a representative of capital/Employers. The material on record
shows that in the Enquiry, it was found that he was a registered class-I
Contractor. Hence, he cannot be a representative of the Employees or an
independent person. Another argument canvassed was that the Chairman of
the Board was a Class-I Contractor. We must note here that as observed by
the learned Single Judge, in this case, constitution of the Board was put on
the Public domain and no one raised any objection to the constitution of the
Advisory Board. Moreover, the three Associations of the Employers referred
above along with other representatives of the Employers participated in the

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270 LABOUR LAW NOTES 2021 (1) LLN

proceedings of the Board without raising any objection to the constitution of

the Board. Moreover, assuming that there were some illegalities in the
composition and constitution of the Advisory Board, it is not shown that it
has resulted into a formation of an opinion which is against the Employers.
The Appellants have not demonstrated any prejudice caused to them due to
such technical error or improper composition of the Advisory Board.
Therefore, it cannot be concluded that the entire proceedings of the Advisory
Board were vitiated due to improper constitution or composition of the
Advisory Board. Moreover, on that ground alone, interference with the
decision of the State Government in fixing the rates of Minimum Wages
cannot be made in exercise of jurisdiction under Article 226 of the
Constitution of India, especially when three major bodies of the Employers
representing the large number of classes of Employers were a part of the
Advisory Board. Therefore, this argument of the Employers deserves to be
rejected.
69. Now we deal with the submissions about the manner in which the
meetings of the Advisory Board were conducted. As pointed out by the State
Government, in case of thirty seven draft Notifications, 521 objections/
representations from various affected parties were received by the Labour
Department. The Advisory Board conducted meetings on different dates and
discussed about the draft Notifications and Objections regarding the rates
proposed regarding various categories of employments. The tabular
Statement giving the details reads thus:
Sl. No. Scheduled Employment Date of Meeting
1. Public Motor Transport 13.5.2016
2. Manufacture of Ayurveda and 25.4.2016
Allopathy Medicine
3. Food Processing 13.5.2015
4. Foundry 17.4.2015
5. Automobile Engineering 17.4.2015
6. Printing Press 17.4.2015
7. Hospital and Nursing Homes 13.5.2016
15.12.2016
8. Hostels 17.4.2015
9. Laundry 13.5.2016
10. Electronics 25.4.2016
11. Steel Almirahas, tables, chairs and 25.4.2016
other steel furniture industry
12. Plastic, Polly Plastic, Rubber and 25.4.2016
PVC pipes manufacturing industry

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 271
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)

13. Film Industry 13.5.2016

14. Tobacco Industry 6.12.2017
Tobacco Processing
15. Wood work including Carpentry 6.12.2017
industry and saw mill Industry
16. Employment not covered under any 6.12.2017
Scheduled Employments
17. Petrol and Diesel oil pumps industry 6.12.2017
18. Brass copper and Aluminum utensils 6.12.2017
manufacturing Industry
19. Spinning Mills 6.12.2017
20. Rubber products (including foam and 6.12.2017
coin rubberized products) Industry
21. Plantation Labour: Cinchona rubber 6.12.2017
tea or coffee plantations (Non-staff)
22. Shops and Commercial 6.12.2017
establishments
23. Wood work including Plywood 6.12.2017
Industry
24. Engineering Industry 6.12.2017
25. Pulp papers, paper, card board, straw 6.12.2017
board including new print
26. Objections pertaining to all the 37 6.12.2017
Scheduled Employments

70. For the sake of illustration, we are referring to minutes of some of the
meetings of the Advisory Board. Firstly, we are referring to the meeting,
dated 17th April 2015. There is a discussion about calculation of rates of
Minimum Wages and the discussion relating to how many units should be
consumed, how many calories were required for an Employee for his daily
livelihood, how much cloth is required for the family of one Employee. It
discusses the house rent payable as fixed by the Government under the
Government Housing Project. It discusses about the Fuel, Electricity and
other Miscellaneous expenses and records that under the calculation of
Minimum Wage, 25% should be allocated towards children’s education,
Medical, social security and marriage. The rates for food and cloth were
arrived at after calculating the price fixed by the State run Janatha Bazar at
various centers in the State. Then, the calculations were made of the actual
amount required for food grains, clothes, house rent and other Miscellaneous
expenses, etc. The minutes record the figures in respect of Zone-1, 2 & 3.
Paragraph 3 of the minutes of the meeting shows that the discussion was

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272 LABOUR LAW NOTES 2021 (1) LLN

about the draft Notifications in respect of the revision of rates of Minimum

Wages relating to the following industries:
(i) Automobile Engineering Industry
(ii) Foundry Industry
(iii) Veneer Industry
(iv) Hostel Industry
(v) Printing Press
(vi) Oil Mills
(vii) Ceramic Industry
(viii) Ice factory industry.
The discussion which took place has been reproduced in the minutes and a
detailed tabular statement has been incorporated of the proposed rates of
Minimum Wages of various categories of Employees. It is noted specifically
in the minutes that there was a consensus amongst all the members present in
the meeting. There was discussion on other topics such as suggestions for
certain amendments to the said Act of 1948.
71. In the meeting held on 2nd January 2016 again there was a detailed
discussion about the draft Notifications issued in respect of the security
agencies. There is a reference to the objections raised to the draft
Notification. The proposal for rates of Minimum Wages has been
incorporated in the minutes in which it has been recorded that out of the
eleven members present in the meeting, seven members have agreed for the
proposals made by the Chairman.
72. In the meeting held on 25th April 2016, there was a discussion on
various categories of industries such as electronic and electroplating
industries, plastic, poly plastic, rubber, PVC pipe manufacturing and some
other industries. Here again, the minutes show that there was an in-depth
discussion and thereafter, the recommendations were made on the rates of
Minimum Wages for different categories of Employees. The decision taken
includes the decision in respect of the Employees of steel almirah, tables,
chairs and steel furniture industry and there is a reference to the several
suggestions received which are reproduced in the minutes.
73. We have carefully perused the minutes of the meeting held on 13th
May 2016 wherein there was a discussion regarding the draft Notification
issued by the State Government in relation to sixteen industries. It refers to
the suggestions made in respect of the draft Notifications, dated 14th January
2016 pertaining to various industries. The minutes deals with the draft
Notifications regarding various Employers, viz., Hospital and Nursing

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 273
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Home, Hotels, Construction, Cinema, Club, Distilleries, food processing as
well as packing food items including packing of coffee and sambar items,
glass and glassware, laundry, electronic and electro plating, timber depot,
aerated water, Public Motor Transport, etc. The names of the participants,
the gist of their suggestions and objections received from various parties are
also incorporated in the minutes. The minutes, in detail, record the reactions
and Statements of various persons who were present. It records that out of
sixteen members, fifteen members were present and after discussion, ten
members have raised their hands favouring the draft Notifications, dated
14th January 2016 for revision of Minimum Wages for sixteen notified
industries and for raise in the dearness allowance from four paise to five
paise in case of all 16 draft Notifications. The names of the representatives,
who voted accordingly have also been incorporated and the proposed rates of
revised Minimum Wages in respect of various categories of Employees of
said sixteen industries have been set out. The minutes indicate that that the
voting had indeed taken place. The minutes further provide that calculation
of dearness allowance will be made once in a year on the basis of the
Consumer Price Index (CPI). The minutes record that the average CPI will
be taken into consideration to determine the revision in the payment of
dearness allowance. It is stated that the calculation on the basis of the CPI
from January to December 2015 will be effective from first day of April,
2016.
74. On 15th December 2016, another meeting of the Advisory Board was
held in which, four independent members, five representatives of the
Employees and six representatives of the Employers participated. There was
a debate in the meeting on the issue of fixing the rates of Minimum Wages in
respect of the industries such as Private Hospitals and Nursing Homes, Road
construction and Management and maintenance of buildings. It is noted in
the minutes that the representatives of the Employees who were present in
the meeting, with one voice, welcomed the action of fixing Minimum Wages
of `40,000 to the Doctors, on par with the wages paid by the Employees’
State Insurance Scheme (ESI). It is specifically recorded that more number
of members present in the meeting have expressed their opinion that
Minimum Wages for Doctors and other personnel of private hospital and
nursing home should be on par with the wages paid to the Doctors and other
staff in ESI and the representatives of the Owners who were present
expressed their opposition. Though in the minutes it is recorded that as there
was no consensus, the Board recommended to the Government to take
suitable decision and issue final Notification, the majority view is reflected
from the minutes.
75. Similarly, after detailed discussion, the majority of the members
expressed their opinion to fix the Minimum Wages of the Engineers working
in the Roads Construction or Management and Maintenance of Buildings on

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274 LABOUR LAW NOTES 2021 (1) LLN

the lines of the pay-scales of the Engineers of the Public Works Department.
The representatives of the owners opposed the same.
In this meeting, there was also a discussion as regards the decision taken
in the earlier meeting of taking the average consumer price index as 5780
points effective from first April 2016. Even on the said decision, there was a
discussion in the meeting, dated 15th December, 2016. It is noted that the
representatives of the Employers have stated that CPI has been merged with
5780 points but in reality, it must be merged with 6205 points. As can be
seen from the minutes, the majority was with the representatives of the
Employees. There was a decision taken regarding formation of the
Committees and sub-Committees which has been disapproved by the learned
Single Judge.
76. On 6th December 2017, there was a meeting of the Advisory Board
attended by thirty three members. The representatives of KCCI, KSCI,
Karnataka Employer’s Association and representatives of some other
organizations of Industries were present. The minutes of the meeting record
that the objections and suggestions were received in respect of the scheduled
37 industries. It is noted that copies of draft Notifications and suggestions
and objections received by the Government to the draft Notifications were
already served to the members of the Board. The list of draft Notifications
has been incorporated in the minutes. views expressed by each and every
member, who actively participated in the meeting have also been recorded.
The issue of retrospectively revising the Minimum Wages was also
discussed. There was a discussion based on the provisions of the Guardians
and Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and
in the context it was suggested that the family should be in the domain of
more than three units. The English translation of ultimate resolution passed
by the Board records that the draft Notifications fixing the rates of Minimum
Wages for thirty seven (37) industries were discussed in the meeting from all
angles and in the background of expert’s opinion and suggestions, it was
unanimously decided that the Karnataka State Government will take suitable
and fair decision.
77. An argument was canvassed that there were no recommendations
made in the meeting held on 6th December 2017. A perusal of the minutes
will show that the views expressed by each and every member who
participated in the deliberations in the meeting have been recorded and a
recommendation was made to the State Government to take a decision after
considering the views expressed in the meeting. Thus, the views of the
members who attended the meeting of 6th December 2017 were before the
Government. Apart from that, the Advisory Board was not expected to
record reasons and pass an order containing its recommendations like Quasi
Judicial or Judicial authority. The views expressed by the members of the
Advisory Board and other factual details recorded in the proceedings were

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 275
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
before the State Government. It is true that Rules 16 & 17 of the Karnataka
Minimum Wages Rules, 1958 provide that the decisions of the Advisory
Board shall be taken by majority of the votes of the members present and
voting and that the voting shall be ordinarily by show of hands unless the
Chairman decides to have it by a secret ballot. Both Rules 16 & 17 are
procedural Rules. The non-compliance with the same will not vitiate the
process especially when there was an elaborate consideration of the issues in
the meetings of the Advisory Board and the views expressed were recorded
in the minutes. The fact that the last meeting continued for only three hours
is not a relevant consideration. There were elaborate deliberations in the
earlier meetings as well. The object of setting up Advisory Board is to
collect the data to enable the State Government to fix the rates of Minimum
Wages. The elaborate discussions on the proposed rates were recorded in the
minutes. Hence, it cannot be said that the action of the Government of fixing
rates of Minimum Wages is vitiated because there was no specific
recommendation made by the Advisory Board. Consultation does not mean
meeting between the members of the Advisory Board and Government
officials. The material in the proceedings of various meetings of the Board
was placed before the decision making authority of the State.
Assuming that there was any flaw in the consultation contemplated by
Section 5 or in the procedure adopted by the Advisory Board, we will be
guided by what is held by this Court in the case of Mangalore Ganesh Beedi
(supra). This Court held that:
“26. A Notification fixing Minimum Wages, in a country like ours where wages
are already minimal should not be interfered with under Article 226 except on
the most substantial of grounds. The Act is a social welfare legislation
undertaken to further the directive principles of State policy and action taken
pursuant to it cannot be struck down on mere technicalities such as some
irregularities in constitution of, or in procedure followed by the committee
appointed under Sections 5(1)(a) & 9. In Sree Kalyanarama Company Mine v.
Government of India, 1980 (56) FJR 79 (AP)(DB), the Minimum Wages
Notification was impugned, inter alia, on the ground that the increase in the
Minimum Wages fixed by that Notification as compared to the earlier one was
disproportionate and highly unreasonable. Rejecting that plea, a Division Bench
of Andhra Pradesh High Court observed:
“.... It is not competent for this Court to go into and say as to what is the
Minimum Wages vis-à-vis a particular industry or for that matter, vis-à-vis a
particular category of Employees. It is well-settled that it is perfectly
competent for the concerned authorities to fix the Minimum Wage if it is in
compliance with statutory requirements”.
27. The fixation of minimum rates of wages in respect of any scheduled
employment by the appropriate Government is an administrative act which is
final and not subject to judicial review on the question of the quantum of wages
fixed on humanitarian ground. The Notification fixing the Minimum Wages can

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276 LABOUR LAW NOTES 2021 (1) LLN

be interfered by the Court only where the fixation of Minimum Wages by the
appropriate Government is ultra vires the Act.” (underline supplied)
Hence, following the aforesaid principles, it is not possible to interfere on
the ground of procedural illegalities in the functioning of the Advisory Board
or its constitution.
78. The note sheets produced by the State Government along with the
Memo, dated 20th August 2019 show that on the basis of the minutes of the
meetings of the Advisory Board, the Deputy Secretary to the State
Government in Labour Department prepared a note on 16th December 2017.
The Secretary has signed it on the same day. Thereafter, there is a noting by
the Deputy Secretary made on 20th December 2017 that there was a
discussion with the Secretary. Thereafter, there is a note by the Deputy
Secretary stating that records in respect of all the Notifications be placed
before the Hon’ble Minister for approval. There is a note, dated 23rd
December 2017 which records that after discussion with the Secretary,
Labour Department, steps have been taken to submit all the Notifications for
the approval of the Hon’ble Minister. It further records that separate 37 files
were maintained in respect of 37 employments. It also records that a separate
proposed Notification in respect of Cotton Ginning and pressing industry is
prepared after a report was submitted by the Labour Commissioner. Thus, in
all 37 files were before the Hon’ble Minister on 23rd December 2017. After
considering the material, Hon’ble Minister approved the same. The minutes
of the proceedings of the Advisory Board along with the proposals for
fixation of final rates of Minimum Wages were placed before the State
Government and from the note sheet it appears that there were due
deliberations at the level of Secretary of the State Government and necessary
verification was made. Thereafter, the Hon’ble Minister approved the
proposals on 23rd December 2016.
79. The State Government had the benefit of the views expressed by the
members of the Advisory Board which were recorded in the minutes of
meetings and the minutes were placed before the State Government. The
noting made in the note sheets clearly indicates that at various levels, the
issue was considered and ultimately, the Hon’ble Minister of the concerned
department granted approval and thereafter, the impugned final Notifications
were issued.
80. The recommendations or the opinion of the Advisory Board, as can
be seen from the Scheme of the said Act of 1948, always remain in the realm
of opinion or advice and there is no statutory obligation on the part of the
Appropriate Government to act upon the recommendations made by the
Board, for fixing or revising the rates of Minimum Wages. All that the
proviso to sub-section (2) of Section 5 of the said Act of 1948 requires is that
the State Government must consult the Advisory Board. The ultimate
decision is with the State Government. Even prior to 6th December 2017,

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 277
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
there were effective discussions in the meetings of the Advisory Board
which we have discussed earlier. In the facts and circumstances, it is not
possible for this Court to accept the argument canvassed that there was no
effective consultation with the Advisory Board.
Issue of consumer price index:
81. There are arguments canvassed regarding the figure of the Consumer
Price Index (CPI) which should be considered and that the action of the
Government in merging CPI with 5780 points is erroneous. We must note
here that as per the dictum of the Apex Court, when the rates of the
Minimum Wages are fixed by the Appropriate Government, a Writ Court
cannot sit over in Appeal, make a detailed factual scrutiny and examine the
merits of the recommendations as well as the merits of the wage structure
finally notified by the Government. This Court does not have expertise to
decide in what manner CPI should be computed for the fixation of the
Minimum Wages and what should be the quantum of the Minimum Wages.
But it is for the persons having expertise in the matter to take a call on that.
A Writ Court cannot act like an expert in the field and adjudicate on the said
issues which should be normally left to the decision making authority which
has the benefit of the opinion expressed by the members of the Advisory
Board.
Cost of housing:
82. As regards the cost of housing (rent), the same has been taken as per
the relevant housing scheme for the poor prevailing at that particular point of
time. The rent is taken at the rate of `4,000, `2,750 & `2,500 per month in
respect of Zone-1, 2 & 3 respectively. It is not in dispute that the Industrial
Housing Scheme which was prevalent earlier is no longer in existence. The
Apex Court in its decision has referred to the housing scheme which was in
existence at that time. As pointed out by the State Government in its
statement of objections, the said scheme is no longer in existence and
therefore, scheme of Affordable Housing for the Urban Poor introduced by
the Ministry of Housing and Urban Poverty Alleviation has been rightly
adopted, which prescribes an area of house of 300-400 square feet. Thus, the
State Government has considered the concept of housing as per the existing
scheme of Affordable Housing for the Urban Poor introduced by the
Ministry of Housing and Urban Poverty Alleviation and has fixed the rates
of rent. In any case, as of December 2017, the aforesaid rates of rent cannot
be termed as unreasonable. Ultimately, what this Court is required to see is
whether the rate of rent fixed by the Government is unreasonable and
arbitrary. If we look at the rates fixed as quoted above, by no stretch of
imagination, the rates can be termed as unreasonable which will amount to
violation of Article 14 of the Constitution.
Direction in Clause (3) of the Notification regarding dearness allowance:

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278 LABOUR LAW NOTES 2021 (1) LLN

83. Now we deal with the argument regarding direction to pay the
dearness allowance in Clause (3) of the impugned Notification. The dearness
allowance has always a nexus with the Consumer Price Index (CPI). The
argument is that the reasons given by the learned Single Judge for setting
aside one percent (1%) addition by way of service seniority allowance of the
Minimum Wages are applicable even to the component of dearness
allowance. The said argument is erroneous. The learned Single Judge has
dealt with this argument stating that such allowances (1%) are paid for
preserving the efficiency of an Employee. The learned Single Judge took a
view that including such an incentive in the concept of Minimum Wages is
erroneous. He held that the appropriate Government was not competent to
include 1% in the Minimum Wages. However, as far as the dearness
allowance is concerned, it stands on a different footing, inasmuch as, it has
direct nexus with the Consumer Price Index. The ultimate object of fixing or
revising the Minimum Wages is that the Employees must survive and
therefore, the dearness allowance cannot be equated with the one percent
(1%) incentives.
84. In the impugned final Notifications, there is a direction in Clause (3)
that in the event the rate of wage paid now is higher, the payment at the said
rate shall be continued and increase in dearness allowance from time to time
also shall be remitted. The first part of the said direction has been already set
aside by the learned Single Judge by the impugned Judgment and Order. The
second part of Clause (3) is a direction which is applicable only to the
payment of higher wages in terms of the first part of Clause (3). As the first
part is set aside, the second part must go. To that extent, the appeals by the
Employers will have to be allowed.
However, the direction regarding payment of 4 paise per day for every
point increase in the State average CPI over 5780 points cannot be disturbed.
Perusal of the impugned Notifications show that dearness allowance payable
as per CPI prevailing is already taken into consideration while fixing the
rates of Minimum Wages as it is mentioned that the rates published by the
Notifications are merged to the State average CPI (1960-100) 5780 points. In
fact a direction has been issued that for every one point increase in future in
State average CPI over 5780 points, the Workers of all categories shall be
paid dearness allowance at the rate of 4 paise per day. The basic rate of
Minimum Wages includes dearness allowance. As on the date of the
impugned Notification, a separate amount is not made payable on account of
dearness allowance. It is specifically observed that rates published by the
Notification have been merged to the State average consumer price index
(1960-100) 5780 points. Reliance is placed by the Employers on the decision
of the Apex Court in the case of Airfreight Ltd. (supra). As it is clear from
the facts of the case before the Apex Court, in the final Notification fixing
rates of Minimum Wages, additional component of dearness allowance was
added. The Apex Court observed thus:

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 279
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
“But while deciding the question of payment of Minimum Wages, the
Competent Authority is not required to bifurcate each component of the costs of
each item taken into consideration for fixing Minimum Wages, as lump sum
amount is determined for providing adequate remuneration to the Workman so
that he can sustain and maintain himself and his family and also preserve his
efficiency as a Worker. Dearness allowance is part and parcel of cost of
necessities. In cases where the minimum rates of wages is linked up with VDA, it
would not mean that it is a separate component which is required to be paid
separately where the Employer pays a total pay package which is more than the
prescribed minimum rate of wages.” (underline supplied)
The said decision will not help the Employers as in the notified rates
dearness allowance is already included and there is no separate component
of the dearness allowance. The direction to pay 4 paise per day on every one
point increase in State average CPI over 5780 points will apply if there is
such increase in CPI after the date of Notification. Hence, there is nothing
wrong in the said direction and consequently, there is nothing wrong in the
direction contained in paragraph (11) of the Notifications.
Industries not specifically covered under any specific items of the Schedule:
85. Some argument is made regarding the act of fixing rates in respect of
some industries though the same are not covered by both the parts of the
Schedule to the said Act. In the case of Airfreight Ltd. (supra), in paragraph
14, the Apex Court observed thus:
“14. For considering this contention, we would first refer to the Notifications
issued by the State Government. By Notification, dated 27.1.1971/28.1.1971, the
Karnataka State Government in exercise of powers conferred by Section 27 of
the Minimum Wages Act directed that in Part I of the Schedule to the said Act,
after Item 27, the following item shall be added, namely:
“28. Employment in shops and commercial establishments.”
Thereafter, in exercise of the powers conferred by sub-section (1) of Section 3 and
sub-section (1) of Section 5 of the Act, the State Government has fixed the rates of
Minimum Wages payable to the categories of Employees who are employed in any
kind of work throughout the State of Karnataka in any of the shops and
commercial establishments as specified in the Schedule.” (underline supplied)
In the same decision, the Apex Court gave a very wide meaning to the term
commercial establishment. In Paragraph 6, the Apex Court held thus:
“6. In our view the contention that the Appellant Company is not covered by the
expression “shops and commercial establishments” has no merit. It is admitted
by the Appellant Company before the Competent Authority (Labour Officer) that
the Appellant Company is engaged in import and export clearance and
forwarding of cargo, travel and tourism, import, consolidate and courier services
and is having several offices situated at various places including New Delhi,
Bombay, Calcutta, Madras, Ahmadabad, Bengaluru, etc. It is also admitted that it
is registered as a commercial establishment which is engaged in courier, cargo,
travel and related services. In the petition filed before the High Court, it was

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280 LABOUR LAW NOTES 2021 (1) LLN

submitted by the Appellant that the main activity of cargo division is handling
incoming and outgoing shipment by air concerning clearing and forwarding; the
type of services rendered are processing of custom clearance and export
formalities; booking of space of air shipment; consolidation of inward air cargo,
international/domestic door to door express delivery of documents, parcels and
packages; clearing and forwarding of goods entrusted to it for safe delivery by
way of personal services and such other activities. For this purpose, the High
Court has appreciated the evidence that was placed before the Labour Officer
and we do not find any error that would call for interference. The High Court has
also rightly referred to the common parlance meaning of the expression “shops
and commercial establishment” on the ground that Item 28 is added in the
Central Act where the said expression is not defined. In our view, the activities
which are carried out by the Appellant leave no doubt that they would be
covered by the expression “shops” and/or “commercial establishment” as
understood in the ordinary common parlance. What the Appellant establishment
is doing is purely a commercial activity with profit motive, hence, commercial
establishment. It can also be termed as a shop where services are sold on a retail
basis. For this purpose, it is not necessary to refer to various decisions of this
Court in detail which deal with the meaning of the expression “shops and/or
commercial establishment”. In Hindu Jea Band v. Regional Director, ESI
Corpn., 1987 (2) SCC 101 : 1987 SCC (L & S) 88, a shop was held to be “a
place where services are sold on retail basis” and, therefore, making available on
payment of a stipulated price the services of musicians employed by the
Petitioner on wages made the Petitioner’s establishment a “shop”. In
International Ore & Fertilizers (India) (P) Ltd. v. ESI Corpn., 1987 (4) SCC 203
: 1987 SCC (L & S) 391, the Petitioner carried on activities facilitating the sale
of goods by its foreign principals to the State Trading Corporation or the
Minerals and Metals Corporation; it arranged for the unloading of such goods
and their survey; upon delivery it collected the price payable and remitted to its
foreign principals. These were considered to be trading activities, although the
goods imported were not actually brought to the Petitioner’s premises but were
delivered to the purchaser there and the premises was held to be a shop. In the
case of Cochin Shipping Co. v. ESI Corpn., 1992 (4) SCC 245 : 1992 SCC (L &
S) 85, wherein the Company was engaged in the business of clearing and
forwarding at the Port of Cochin situated in Willingdon Island the question was
whether the establishment with the Company is a “shop” within the meaning of
the expression as used in the Notification under the ESI Act. The Court held that
the Company was rendering service to cater to the needs of exporters and
importers and others who want to carry the goods further. Therefore, it is a shop
carrying on systematic, economic or commercial activity. Further, in the case of
ESI Corpn. v. R.K. Swamy, 1994 (1) SCC 445 : 1994 SCC (L & S) 586, the
Court held that “the word ‘shop’ has acquired an expanded meaning and means a
place where services are sold on retail basis”. The Court further observed that the
Employees’ State Insurance Act, 1948 was a beneficial legislation and, therefore,
it was reasonably possible so to construe the word “shop” as to include the
activity of an advertising agency within it.” (underlines supplied)
None of the Appellants who are falling in the category of commercial
establishments have come out with the case that they are not carrying on

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 281
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
commercial activities with the intention to make profit. Hence, there is no
merit in this grievance.
Argument of discrimination between different categories of employments and
the argument that the rates fixed are higher than the rates fixed in other
states:
86. In some of the Appeals, a grievance has been made that different
yardsticks have been applied while dealing with different employments.
There is a common argument that rates of Minimum Wages fixed in the
State are higher than the rates fixed in other States. In the case of Bhikusa
Yamasa Kshatriya (supra), the Apex Court in Paragraph 4 & 5 has held thus:
“4. The plea that fixation of minimum rates by Notification under Section 3
violates the fundamental freedom under Article 19(1)(f) is in view of the
decisions of this Court not open to be canvassed by the Appellants. But it is
urged that in enacting Section 3(3)(iv) which conferred upon the State authority
to fix varying minimum rates of wages for different localities, the legislature
gave no indication of the matters to be taken into account for that purpose, and
entrusted the State with arbitrary and uncontrolled power, exercise whereof was
likely to result in discriminatory treatment between different Employers carrying
on the same business in contiguous localities. The Act undoubtedly confers
authority upon the appropriate Government to issue Notifications fixing and
revising rates of Minimum Wages in respect of diverse industries for the whole
or part of the State. Having regard to the diversity of conditions prevailing and
the number of industries covered by the Act the legislature could obviously not
fix uniform minimum rates of wages for all scheduled industries, or for all
localities in respect of individual industries. Working out of detailed provisions
relating to the minimum rates, the advisability of fixing rates for different
industries, ascertainment of localities in which they were to be applied, and the
time when they were to be effective, and fixation of time rate, piece rate, or
guaranteed time rate had from the very nature of the legislation to be delegated
to some authority. In considering the minimum rates of wages for a locality
diverse factors such as, basic rates of wage, special allowance, economic
climate of the locality, necessity to prevent exploitation having regard to the
absence of organisation amongst the Workers, general economic condition of the
Industrial Development in the area, adequacy of wages paid, and earnings in
other comparable employments and similar other matters would have to be taken
into account. Manifestly the legislature could not ascertain whether it was
expedient to fix Minimum Wages in respect of each scheduled industry for the
entire territory or for a part thereof and whether uniform or varying rates should
be fixed having regard to the conditions prevailing in different localities. Again
of necessity, different rates had to be fixed in respect of the work performed by
adults, adolescents, children and apprentices.
5. The object and policy of the legislature appear on the face of the Act. The
object of the Act is to prevent exploitation of the Workers, and for that purpose it
aims at fixation of Minimum Wages which the Employers must pay. The
legislature undoubtedly intended to apply the Act to those industries or localities
in which by reason of causes such as un-organised Labour or absence of

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machinery for regulation of wages, the wages paid to Workers were, in the light
of the general level of wages, and subsistence level, inadequate. Conditions of
Labour vary in different industries and from locality to locality, and the
expediency of fixing Minimum Wages, and the rates thereof depends largely
upon diverse factors which in their very nature are variable and can properly be
ascertained by the Government which is in charge of the administration of the
State. It is to carry out effectively the purpose of this enactment that power has
been given to the appropriate Government to decide, with reference to local
conditions, whether it is desirable that Minimum Wages should be fixed in
regard to any scheduled trade or industry, in any locality, and if it be deemed
expedient to do so, the rates at which the wages should be fixed in respect of that
industry in the locality. By entrusting authority to the appropriate Government to
determine the Minimum Wages for any industry in any locality or generally, the
legislature has not divested itself of its authority, nor has it conferred
uncontrolled power upon the State Government. The power conferred is
subordinate and accessory, for carrying out the purpose and the policy of the Act.
By entrusting to the State Government power to fixing Minimum Wages for any
particular locality or localities the legislature has not stripped itself of its
essential legislative power but has entrusted what is an incidental function of
making a distinction having regard to the special circumstances prevailing in
different localities in the matter of fixation of rates of Minimum Wages. Power
to fix minimum rates of wages does not by itself invest the appropriate
Government with authority to make unlawful discrimination between Employers
in different industries. Selective application of a law according to the exigencies
where it is sanctioned, ordinarily results in permissible classification. Article 14
forbids class legislation but does not prohibit reasonable classification for the
purpose of legislation. If the basis of classification is indicated expressly or by
implication, by delegating the function of working out the details of a scheme,
according to the objects of the statute and principles inherent therein, to a body
which has the means to do so at its command, the legislation will not be exposed
to the attack of unconstitutionality. In other words, even if the statute itself does
not make a classification for the purpose of applying its provisions, and leaves it
to a responsible body to select and classify persons, objects, transactions,
localities or things for special treatment, and sets out the policy or principles for
its guidance in the exercise of its authority in the matter of selection, the statute
will not be struck down as infringing Article 14 of the Constitution. This
principle is well recognized: See Kathi Raning Rawat v. State of Saurashtra,
1952 SCR 435.” (underlines supplied)
Even in the case of Chandra Bhawan Boarding (supra), this issue has been
dealt with. In paragraph 16, it is held thus:
“16. The contention that the Government has no power to fix different Minimum
Wages for different industries or in different localities is no more available in
view of the decision of this Court in Bhaikusa Yamasa Kahatriya v. Sangamner
Akola Taluka Bidi Kamgar Union, 1963 Supp. (1) SCR 524. The fixation of
Minimum Wages depend on the prevailing economic conditions, the cost of
living in a place, the nature of the work to be performed and the conditions in
which the work is performed. The contention that it was impermissible for the
Government to divide the State into several zones is opposed to Section 3(3) as
well as to the scheme of the Act.” (underlines supplied)

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 283
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
Thus, in view of the law laid down by the Apex Court, the contentions raised
by the Employers deserve to be rejected.
The contention that zones have been fixed arbitrarily:
87. Another contention of the Employers is that the three zones adopted
by the State are arbitrary. The grievance is that inclusion of Tumakuru in
Zone I along with Bengaluru is irrational. The proximity in terms of distance
of Tumakuru from Bengaluru, its accessibility from Bengaluru, the all
around development in the outskirts of Bengaluru, etc may be the relevant
factors. Even the fact that the area of Tumakuru falls in Municipal
Corporation constituted under the Karnataka Municipal Corporations Act,
1976 is also one of the several relevant considerations. In the case of
Chandra Bhavan Boarding, the Apex Court has considered a similar
argument in paragraph 17 which reads thus:
“17. On the basis of the material before us we are unable to say that the various
zones had not been made on any rational basis. The Government has given good
reasons in support of the steps taken by it. Bengaluru is the capital of the State and
Mangalore is a major port. Therefore they may stand on a different footing. In
matter like the preparation of zones we have to trust the State Government unless it
is shown that collateral considerations have influenced its decision. No such plea
was taken. The argument based on cost of living index showing that cost of living
index was higher in several other towns in the State than Bengaluru or Mangalore
is not a well founded argument. The cost of living is one thing, cost of living index
is another. What is relevant is the former and not the latter. The latter depends on
the base year, which is not the same in all the towns and the prices of certain
selected goods in each of the towns concerned in the base year and thereafter
which again is likely to differ from town to town.” (underline supplied)
It is pointed out that in subsequent Notifications, Tumakuru is placed in
Zone 2. The considerations for placing a particular area in a particular zone
keep on changing with the passage of time. The Government is the best
judge to decide which area should be included in which zone. It is not for the
writ Court to decide which area should fall in which zone. Therefore, we
cannot find fault with inclusion of the town Tumakuru in zone 1.
Other submissions:
88. There was an argument canvassed that the State Government has
constituted a Committee to reconsider the recommendations made by
Shanthappa Committee and without waiting for the recommendations of the
said Committee, the rates of Minimum Wages have been fixed. We may note
here that the rates of Minimum Wages have been fixed after considering
several factors. One of the factors taken into consideration while fixing the
rates may be recommendations of the Shanthappa Committee. Merely
because a Committee has been constituted for reconsideration of
recommendations of Shanthappa Committee, the process of determination of

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284 LABOUR LAW NOTES 2021 (1) LLN

rates of Minimum Wages is not vitiated even assuming that the

recommendations of Shanthappa committee have been considered.
89. Some criticism has been made that the Minimum Wage of doctors has
been fixed at the rate of `40,908.40 per month. This rate is applicable from
30th December 2017. The deliberations in the Advisory Board to which a
reference has already been made shows that the members were of the view
that for determining the Minimum Wages of doctors, the wages fixed under
the Employees’ Insurance Scheme Establishments be taken into
consideration. It is true that the Minimum Wages for doctors have been
substantially increased. But, it cannot be said that as of 30th December 2017,
the rate of Minimum Wages of doctors fixed as above is arbitrary or
unreasonable or capricious.
90. Another criticism is made about the direction of the learned Single
Judge to pay Interest at the rate of 6% per annum on the Minimum Wages
fixed from 30th December 2017. The learned Single Judge has given the
reasons for the said direction. The impugned Minimum Wages Notifications
were not implemented on account of Interim Relief granted in the petitions
filed by the Employers. After finding that there was no illegality in the rates
of Minimum Wages fixed under the impugned Notifications, for
compensating the Employees, this reasonable direction of payment of
Interest at the rate of 6% has been issued. The Employees became entitled to
wages at the revised rates from 30th December 2017. Hence, they are
entitled to interest at the reasonable rate of 6% per annum.
91. In the case of Mangalore Ganesh Beedi (supra), this Court
summarized the law on the limitations on interference with fixation of rates
of Minimum Wages in writ jurisdiction under Article 226 of the Constitution
of India. This Court held thus:
“31. Thus, it is well-settled that the Notification fixing the Minimum Wages
cannot lightly be interfered with by the High Court under Article 226 and that
the High Court can interfere with such Notification only where it finds the
concerned appropriate Government has exceeded its jurisdiction and/or acted
ultra vires the provisions of the Act.” (underline supplied)
To conclude, except the issue regarding withdrawal of the Notifications
where the action of the State Government is found to be ultra vires the said
Act of 1948, we do not find any error in the view taken by the learned Single
Judge as far as the challenge to the fixation of rates of Minimum Wages is
concerned. The view taken by the learned Single Judge is within the four
corners of the law as far as the rates are concerned. It cannot be said that
while fixing the rates of Minimum Wages, the State Government has
exceeded the jurisdiction vested in it or the action is ultra vires the
provisions of the said Act of 1948. However, it is always open for the State
Government to revise the rates of Minimum Wages after following the
procedure under the said Act of 1948. The State Government can do so on its

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January 2021 Private Hospital & Nursing Homes Association v. Secretary, 285
Labour Department, Govt. of Karnataka (DB) (Kar.) (Abhay Shreeniwas Oka, C.J.)
own or on the representation made by the Employers. Hence, we pass the
following:
ORDER
(i) The impugned Judgment and Order insofar as it relates to W.A.
No.1520/2019 is hereby set aside and W.P. No.18621/2018 is allowed.
The impugned Notification, dated 22nd March 2018 is hereby set aside
and three final Notifications, dated 30th December 2017 as well as the
Preliminary Notification, dated 22nd February 2018 which were the
subject matter of the said Order, dated 22nd March 2018 stand revived.
Hence, the Notifications, dated 31st October 2019 in relation to the
employments covered by the four Notifications subject matter of the
Order, dated 22nd March 2018, are rendered inoperative;
(ii) The State Government shall take further steps on the basis of the draft
Notification, dated 22nd February 2018 in accordance with Section 5 of
the said Act of 1948 as expeditiously as possible;
(iii) This order will not prevent the aggrieved parties from challenging the
three revived final Notifications, dated 30th December 2017 in
accordance with law. Moreover, it will be always open for the State
Government to undertake the revision of the rates of Minimum Wages
fixed under the said three Notifications, dated 30th December 2017 in
accordance with the provisions of the said Act 1948;
(iv) So far as Writ Appeals preferred by Employers are concerned, the
impugned Judgment and Order passed on the Writ Petitions filed by the
Employers stands confirmed with the modification that the entire Clause
(3) of the impugned Notifications shall stand set aside subject to the
observations and clarification made in paragraph 84. Only to that extent,
the Appeals preferred by the Employers are partly allowed;
(v) Considering the present situation, to enable the aggrieved parties to
approach the higher Court, this Judgment will not be implemented for
twelve weeks from today;
(vi) No orders as to Costs.
  

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286 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 286 (DB) (Kar.)

IN THE HIGH COURT OF KARNATAKA
B.V. Nagarathna & Neranahalli Srinivasan Sanjay Gowda, JJ.
W.A. No.8 of 2020 (S-RES)
15.10.2020
Kiran, P. ....Appellant
Vs.
Commissioner, Bengaluru Development Authority .....Respondent
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Sections 17 & 17-A
— Publication of Award — Commencement of Award — Dismissal
from Service — Setting aside of dismissal by Labour Court — Death of
Workman — Application for appointment on Compassionate ground —
Whether sustainable — Father of present Appellant working with
present Respondent-BDA — Dismissed from service on 24.2.2003 —
Industrial Dispute raised — Labour Court set aside Dismissal with Back
Wages and continuity of service vide Award, dated 4.9.2013 and
directed his Reinstatement within one month from date Award becomes
enforceable — Father of Petitioner died on 18.3.2014 and could not reap
benefits of Award — Respondents accepted Award — Award notified
on 20.10.2014, after death of Workman — Appellant submitted
Representation on 19.7.2014 seeking appointment on Compassionate
ground which was not considered — Writ Petition filed — Despite
Order passed in Writ Petition, Respondent rejected appointment on
Compassionate ground — Appellant, aggrieved by stand taken by
Respondent, filed Writ Petition wherein Single Judge concluded that
rejection of Application for appointment could not be faulted, since
family of deceased received sum of `33.63 Lakhs as Terminal benefits
and there was no hardship to family — On challenge, held, Court on
earlier occasion examined issue and recorded categorical finding that
deceased was deemed to be in service on date of his death as Dismissal
was set aside — Every Award of Labour Court become enforceable only
on publication and is required to be published within thirty days from
its receipt by Appropriate Government under Section 17 — Under
Section 17-A, Award becomes enforceable on expiry of thirty days from
date of publication subject to Proviso that Government can decide not to
notify Award, if in its opinion it is expedient on Public grounds affecting
National economy or social justice — In Court’s view this discretion
cannot enure to benefit of Employer and Employer is bound by Award
passed by Labour Court — Hence, Employer not entitled to get any
benefit from delay in Notification of Award — Dismissal Order set aside
and Workman granted continuity of service hence, relationship of
Employer and Employee stood restored from date of Dismissal itself —
Thus, father of Appellant deemed to have been in service on date of his

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January 2021 Kiran, P. v. Commissioner, Bengaluru Development Authority 287
(DB) (Kar.) (Neranahalli Srinivasan Sanjay Gowda, J.)
death, especially when Award was notified — Entire approach of
Respondent in considering matter held to be arbitrary and irrational —
Reasoning of Single Judge that Appellant’s family received Terminal
benefits and they were not in distress, not acceptable — Had he not been
dismissed and continued in service and died while in service, entitlement
of Appellant could not have been denied under policy of Respondent —
Receipt of Terminal benefits cannot be a yardstick to disentitle
dependent member of deceased’s family — Single Judge erred in
dismissing Writ Petition solely on ground that family of deceased
received huge amount of Terminal dues — Appeal allowed — Impugned
Order set aside — Respondent directed to issue Order of Appointment
on Compassionate ground to Appellant, if there is no other legal
impediment, within four weeks. (Paras 22 to 41)
CASES REFERRED
Haryana State Electricity Board v. Hakim Singh, 1997 (3) LLN 783 (SC) ........................17, 32
State of Himachal Pradesh v. Shashikumar, 2019 (3) SCC 653.........................................32, 33
G.S. Kannur, Senior Counsel for Vasanth Kumar, H.T., Advocate For Appellant.
K. Krishna, Advocate for Respondent.
Finding — W.A. allowed — No costs.
Prayer : This Appeal is filed under Section 4 of the Karnataka High Court Act praying To set aside the
Order, dated 27.11.2019 in W.P. No.27454 of 2019 (S-RES) passed by the learned Single Judge and
allow W.P. No.27454 of 2019

JUDGMENT
Neranahalli Srinivasan Sanjay Gowda, J.
1. Though the Appeal is listed for preliminary hearing, with the consent
of learned Counsel for both sides, it is heard finally.
2. Facts giving rise to filing of the Writ Petition and passing of the
impugned Order are as follows:
Sri Prakash, father of the Writ Petitioner/Sri Kiran-Appellant herein
while working as Second Division Clerk in Bengaluru Development
Authority (for short, hereinafter referred to as ‘BDA’) was dismissed from
service on 24.2.2003. The said Prakash raised an Industrial Dispute, which
was referred to the Labour Court. The Labour Court, on consideration of the
materials produced before it, accepted the reference and proceeded to set
aside the Order of Dismissal, dated 24.2.2003 and directed the BDA to
reinstate Prakash into service to his original post within one month from the
date the Award became enforceable. The Labour Court also awarded full
Back Wages from the date of dismissal till reinstatement and also granted
continuity of service with all other consequently benefits.

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288 LABOUR LAW NOTES 2021 (1) LLN

3. The said award of the Labour Court was passed on 4.9.2013. However,
Prakash was unable to reap the benefits granted to him under the Award as
he passed away on 18.3.2014.
4. The BDA, however, accepted the Award of the Labour Court and did
not challenge the same. The Award in favour of Prakash was notified by the
State after the death of Prakash on 20.10.2014.
5. The Appellant/Writ Petitioner immediately after the death of his father-
Prakash submitted a representation on 19.7.2014 seeking for an appointment
on compassionate grounds. Since the said request was not considered, he
was constrained to file W.P. No.38608/2017.
6. The said Writ Petition was contested by the BDA by filing a detailed
statement of objections. The said Writ Petition had been basically filed
seeking for a Mandamus to consider the representation of the Appellant,
dated 19.7.2014. This Court, however, taking note of the objections filed by
the BDA, by which the BDA sought to deny the very entitlement of the
Appellant, came to the conclusion that it was necessary to consider the
objections put forth by the BDA on merits before issuing a direction to
consider the case of the Appellant.
7. The relevant observation of this Court in this regard can be found at
Paragraph 3 of the order, which reads as under:
“3. The Respondent has filed the objection statement. In the normal
circumstances, since the application had not been considered by the Respondent,
it would have been sufficient for this Court to direct consideration of the
application in accordance with law leaving open all aspects. However, through
the objection statement, since certain contentions seeking to decline the very
consideration of the application is put forth, that aspect of the matter requires to
be taken note herein and thereafter a conclusion is required to be reached.”
8. Thus, in the said Writ Petition, the stand taken by the BDA was
scrutinized by this Court and this Court, on consideration of the contentions
advanced, proceeded to hold as follows at Paragraphs 5 & 6:
“5. Insofar as the contention that the nature of the Award as passed by the
Labour Court would not be justified, the same would not arise for consideration
at this stage, since the Award, dated 4.9.2013 has attained finality and the
monetary benefits as ordered there under has already been paid to the Family
Members in implementation of the Award. Insofar as the aspect to consider
whether death was in harness, though the Award was notified only on
20.10.2014, the Award has been passed on 4.9.2013 whereunder, reinstatement
was ordered. If that be the position, as on 18.3.2014, the father of the Petitioner
will be deemed to have been in employment as the Dismissal Order had been set
aside as on such date. Therefore, insofar as considering the death as during
harness, it is to be made and in that regard the application would merit
consideration.

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January 2021 Kiran, P. v. Commissioner, Bengaluru Development Authority 289
(DB) (Kar.) (Neranahalli Srinivasan Sanjay Gowda, J.)
6. Further, the fact which cannot be in dispute is also that the application was
filed on 17.6.2014 after the death of father of the Petitioner on 18.3.2014. If that
be the position, at this point it cannot be said that the application was filed
belatedly nor can the financial position of the family at this point be the basis for
decision. In that circumstance, the application filed by the Petitioner seeking
compassionate appointment in any event would require consideration by the
Competent Authority keeping in view as to whether such application would have
merited consideration, as on the date of death if all other conditions that are
required for satisfactory consideration of such application are met by the
Petitioner. Hence, to that extent, I am of the opinion, a direction is required to be
issued to the Respondent to take note of the Application filed by the Petitioner
dated 19.7.2014, keep in view the regulations towards consideration of
compassionate appointment and if the Petitioner satisfies the conditions thereto,
the consideration in that regard be made.”
9. It is, therefore, clear that the stand of the BDA that the Appellant was
not entitled for appointment on compassionate grounds because his father
had died before the Award became enforceable and it could not therefore be
directed to consider the case of the Appellant on the assumption that Prakash
was in service as on the date of his death was specifically considered and
refuted by this Court. In fact, this Court recorded a clear finding that the
father of the Appellant was deemed to have been in employment by virtue of
the Dismissal Order being set aside and therefore, the application of the
Appellant merited consideration.
10. It may be pertinent to state here that during the pendency of that Writ
Petition itself, the BDA has proceeded to settle the benefits in favour of the
family of Prakash and yet the BDA did not raise any contention in the said
Writ Petition that the Appellant was not entitled for being considered to be
appointed on compassionate ground because his family had received the
terminal benefits.
11. The BDA, despite the Order passed in W.P. No.38608/2017 regarding
the entitlement of the Appellant for appointment on compassionate ground,
proceeded to consider his representation and rejected the same by citing the
following grounds:
“(1) Late Shri Prakash was not in service at the time of his demise, since
he was dismissed from Service.
(2) Though, Family pension etc., were released to the Legal Heirs of late
Prakash, it is because of the stand taken by the Labour Court. This cannot
be construed as the fact that late Shri Prakash was taken to service after
his dismissal.
(3) The officiating period of Shri Late Prakash was not declared as
satisfactorily, since, he has not passed the required department
examinations.”

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290 LABOUR LAW NOTES 2021 (1) LLN

12. From the reasoning given by the BDA, it is clear that despite a
specific order by this Court that Prakash was deemed to have been in
service, by virtue of the Order of Dismissal being set aside, the BDA has
once again sought to put forth the plea that Prakash was not in service as on
the date of his death and therefore, the Appellant could not be considered for
appointment on compassionate grounds.
13. This Court, having noticed that the BDA was trying to put forth the
plea that the Appellant was not entitled to be considered for appointment on
compassionate grounds because his father had died prior to the Award being
enforced, specifically examined that aspect of the matter and gave a
categorical finding that Prakash was deemed to have been in service by
virtue of the Order of Dismissal having been set aside by the Labour Court
and the Notification of the Award after his death had no bearing on the issue
of appointment of the Appellant on compassionate grounds.
14. The Appellant, being aggrieved by the stand taken by the BDA,
proceeded to challenge the said rejection by filing a Writ Petition, in which
the impugned Order has been passed.
15. The learned Single Judge by the impugned Order did not really
venture to consider the validity of the reasoning given by the BDA. The
learned Single Judge, however, came to the conclusion that the rejection of
the BDA could not be found fault with, since the family of the Appellant had
received a sum of `33,63,465 as terminal benefits and the receipt of this had
obviated any hardship that the family had been put into.
16. The learned Single Judge rested his conclusion on the reason that an
entitlement for an appointment on compassionate grounds would arise only
if there was hardship and distress in the family of the deceased and since, in
the instant case, the family had received large sums of money as terminal
benefits, there was no distress to the family of the Appellant entitling the
Appellant for being appointed on compassionate grounds.
17. The learned Single Judge also placed reliance on the Judgment of the
Apex Court in the case of Haryana State Electricity Board v. Hakim Singh,
1997 (3) LLN 783 (SC) : 1997 (8) SCC 85 in which the objective of giving
appointment on compassionate grounds to an Employee, who dies in harness
had been enunciated by the Apex Court.
18. Being aggrieved by the said order of the learned Single Judge, the
present Appeal has been filed.
19. Sri. G.S. Kannur, learned Senior Counsel appearing for the Appellant
contended that the BDA could not have proceeded to reject the claim of the
Appellant on the ground that the father of the Appellant was not in service in
light of the Judgment rendered in the earlier round of litigation in W.P. No.
38608/2017. He also contended that once the Dismissal Order had been set-

Labour Law Notes / January-2021

January 2021 Kiran, P. v. Commissioner, Bengaluru Development Authority 291
(DB) (Kar.) (Neranahalli Srinivasan Sanjay Gowda, J.)
aside, the deceased Employee is deemed to have been in service, more so,
when the Labour Court had also granted continuity of service to the
deceased Prakash. He submitted that since the Employee was deemed to be
in service, his death on 18.3.2014 would have to be taken as the death of an
Employee, which had occurred while he was in service.
20. He also put forth the contention that the learned Single Judge could
not have ignored the reasoning put forth by the BDA in the endorsement
impugned in the Writ Petition and he could not have proceeded to dismiss
the Writ Petition on the grounds which were not even set out in the
endorsement. He submitted that the reasoning of the learned Single Judge
regarding the receipt of monetary benefits were not germane to the issue on
hand. He submitted that the receipt of terminal benefits is not a largesse
granted to an Employee and it is in effect, the result of the benefits that an
Employee has earned over a long period of service rendered to his Employer.
He submitted that the payment of terminal benefits has absolutely no relation
to the need to provide an appointment on compassionate ground.
21. Sri. K. Krishna, learned Counsel for the BDA, on the other hand,
contended that the order of the learned Single Judge cannot be found fault
with since it was based on equitable considerations. He also put forth the
contention that the Appellant could not be considered for appointment on
compassionate grounds, having regard to the huge sum of money that the
family had received as terminal benefits.
22. We have considered the submissions of learned Senior Counsel
appearing for the Appellant as well as the learned Counsel for the BDA and
also perused entire material on record.
23. As noticed above, this Court, on the earlier occasion in W.P. No.
38608/2017 having taken into consideration that the BDA was trying to raise
a plea to hold that the Appellant was disentitled for being considered for
appointment on compassionate grounds, examined the said contention in
detail and recorded a categorical finding that the deceased Employee was
deemed to have been in service on the date of his death and as a
consequence, the BDA was bound to consider the case of the Appellant for
appointment on compassionate grounds. In other words, this Court virtually
preempted the move of the BDA to non Suit the Appellant and passed an
order having regard to the fact that the claim was for an appointment on
compassionate basis and this Court did not want the Appellant to suffer the
travails of an endless litigation.
24. As far as argument regarding the Award of the Labour Court
becoming enforceable only on its publication is concerned, it is to be noticed
that every Award passed by the Labour Court is required to be published in
the manner prescribed within a period of thirty days from the date of its
receipt by the appropriate Government under Section 17 of the Act.

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292 LABOUR LAW NOTES 2021 (1) LLN

25. Section 17A of the Act deals with the commencement of the Award.
It stipulates that an Award becomes enforceable on the expiry of thirty days
from the date of its publication under Section 17 of the Act. The said Section
is, however, subject to a Proviso that the Government can decide not to
notify the Award if it is of the opinion that it is inexpedient on public
grounds affecting national economy or social justice. Thus, on a conjoint
reading of Section 17 and Section 17-A of the Act, it is clear that the
requirement of publication of an Award and for commencement of the
Award are only to ensure that the appropriate Government can examine the
Award and decide whether it in any way affects the national economy or
social justice, by the notification of the Award. In our view, this discretion
available to the Government cannot enure to the benefit of the Employer.
The Employer is bound by the Award that has been passed by the Labour
Court on a reference by the State Government.
26. The intent behind these provisions is clear and it is that since the State
Government referred the dispute, the Statute prescribes that pursuant to the
Award passed by the Labour Court, the Award passed would have to
examined and scrutinized by the Government to see whether Government’s
interests are affected. According to us, the provisions do not in way create a
right in favour of the Employer so as to stall or keep the Award in abeyance.
It is, therefore, clear that the Employer does not get any benefit from the
delay in Notification of the Award.
27. In the instant case, the fact remains that the State did notify the
Award and it therefore did not exercise the option available to it to prevent
the Notification of the Award, obviously because the interests of the State
were not affected by it.
28. In this case, though on Notification of the Award, the terms of the
Award became enforceable, on the passing of the Award, the order of
dismissal was set aside and since the Workman was granted continuity of
service, the relationship of Employer and Employee stood restored from the
date of dismissal itself. Thus, the Appellant’s father would be deemed to
have been in service on the date of the Award itself, especially when the
Award was in fact notified by the Government. The argument of the BDA
regarding Notification of the Award is, therefore, devoid of merit and the
same is rejected.
29. In our view, the Order passed in W.P. No.38608/2017 laid at rest the
contention advanced by the BDA that the Appellant was not entitled for
being appointed on compassionate grounds because his father was not in
service cannot be accepted. The BDA having accepted both the Award of the
Labour Court as well as the order of the Learned Single Judge in the earlier
Writ Petition, cannot thereafter be permitted to put forth the very same
reason it had put forth earlier to reject the claim of the Appellant. In our
view, the entire approach of the BDA in considering the matter is arbitrary

Labour Law Notes / January-2021

January 2021 Kiran, P. v. Commissioner, Bengaluru Development Authority 293
(DB) (Kar.) (Neranahalli Srinivasan Sanjay Gowda, J.)
and irrational. Once the Order of Dismissal was set aside and Prakash was
directed to be reinstated with full Back Wages and also continuity of service,
in law, Prakash is deemed to have been in service till he passed away. The
Notification of an Award is essentially a ministerial act to allow for its
enforcement and the delay in notifying the Award would have no bearing to
fact that the relationship on Employer and Employee stood restored under
the Award.
30. The reasoning of the learned Single Judge that the Appellant’s family
had received a huge sum of money as terminal benefits and therefore, they
were not in distress cannot be accepted. It is to be stated here that Prakash
had been dismissed from service and the Labour Court, after Enquiry, found
that the Domestic Enquiry was illegal and it therefore awarded full Back
Wages. The family of the Appellant thus by virtue of an Award of the
Labour Court was recipient of money, which was due to them due to an
illegal act committed by the BDA and this receipt of money awarded to them
as a consequence of an illegal act could not be used against them for refusing
any rights that they possessed for appointment on compassionate ground.
31. It is to be noticed here that had Prakash not been dismissed from
service, he would have continued in service and since he would have thereby
died while in service, the entitlement of the Appellant could not be denied.
32. The learned Single Judge while dismissing the Writ Petition has
relied upon the Judgments of the Apex Court in the case of Haryana State
Electricity Board v. Hakim Singh, 1997 (3) LLN 783 (SC) : 1997 (8) SCC
85 and State of Himachal Pradesh v. Shashikumar, 2019 (3) SCC 653.
33. The Apex Court, in the case of State of Himachal Pradesh v.
Shashikumar referred to supra, has stated as follows at Paragraph 18 of the
Judgment:
“The terms on which such applications would be considered are subject to the
policy which is framed by the State and must fulfil the terms of the policy. In
that sense, it is a well-settled principle of law that there is no right to
compassionate appointment. But, where there is a policy, a dependent member of
the family of a deceased Employee is entitled to apply for compassionate
appointment and to seek consideration of the application in accordance with the
terms and conditions which are prescribed by the State.” (Underlining by us)
34. As could be seen from the said observation, though there is no right to
seek for compassionate appointment by the dependants of a deceased
Employee, however, whenever the Employer frames a policy for
compassionate appointment, the dependent member of a family would have
a right to apply for and seek for compassionate appointment.
35. Admittedly, in the instant case, the BDA does not dispute that it does
not have a policy for compassionate appointment and it is not the case of the
BDA that their policy disentitles a dependant of a deceased Employee if

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294 LABOUR LAW NOTES 2021 (1) LLN

monetary benefits are received by the family of the deceased. So long as the
BDA has a policy with regard to compassionate appointment and has rules in
this regard, the right of the dependants of a deceased to seek for
compassionate appointment under the policy and rules cannot be negated by
the BDA on the premise that the family of the deceased were recipients of
certain financial benefits on account of the death of an Employee.
36. We would like to reiterate that the receipt of any terminal benefits
cannot and should not be the Yardstick to disentitle a dependent member of
the family to seek for appointment on compassionate grounds and so long as
there is a policy in force regarding compassionate appointment in force, the
case of the dependants would have to be considered in accordance with the
Rules notwithstanding the receipt of any financial benefit that the family of
the deceased had received from the Employer.
37. It is to be borne in mind that the Employer while framing a policy for
providing appointment on compassionate ground, would be conscious of the
fact that the dependants of a deceased would receive financial benefits and
the Employer had framed a policy only because it would be well aware that
mere receipt of financial benefits would not by itself ameliorate the
condition of the family of the deceased and the family of the deceased would
be able to tide over the crisis only if one of the dependants was provided
employment. It is precisely for this reason that the policy for providing
compassionate appointment does not disentitle a dependant from seeking for
compassionate appointment merely because the family is recipient of certain
financial benefits due to the death of the Employee.
38. At the cost of repetition, it is to be stated here that it was not the case of
the BDA that their policy did not disentitle a dependant of a deceased to seek
for compassionate appointment if the family had received financial benefits
and hence it is not open for the BDA to contend that the Petitioner was
disentitled on that ground, which the BDA, as a matter of fact did not put forth
as a reason for denying the consideration of the case of the Appellant.
39. We are, therefore, not inclined to accept the reasoning of the learned
Single Judge and we are, therefore, of the view that the learned Single Judge
erred in dismissing the Writ Petition solely on the ground that the
Appellant’s family had received a huge sum of money as terminal benefits.
40. In the result, the Appeal is allowed. The impugned Order is set aside.
41. The Respondent/BDA is directed to issue an order of appointment on
compassionate ground to the Appellant, if there is no other legal impediment
in doing so. The said exercise shall be carried out within a period of four
weeks from the date of receipt of a certified copy of this Judgment. Parties to
bear their respective costs.
  

Labour Law Notes / January-2021

January 2021 B. Radhakrishna Menon v. State of Kerala 295
(DB) (Ker.) (S. Manikumar, C.J.)
2021 (1) LLN 295 (DB) (Ker.)
IN THE HIGH COURT OF KERALA
S. Manikumar, C.J. & Shaji P. Chaly, J.
W.P.(C) No.12109 of 2020(S)
30.6.2020
B. Radhakrishna Menon, aged 66 years, Sree Nikethen, Thrikkodithanam, Changanacherry, Pin-
686 105 …..Petitioner
Vs.
State of Kerala, rep. by Chief Secretary to Government, Kerala Government Secretariat,
Thiruvananthapuram - 695 001 and another …..Respondents
KERALA WOMEN’S COMMISSION ACT, 1991 (17 of 1995), Section
11 — Removal of Chairperson — Whether warranted — Writ Petition to
remove R2 from office of Chairperson of Commission — No information
against R2 submitted by Petitioner before Commission — No allegation
that R2 did not possess requisite qualifications — Allegations against R2
vague and unsubstantiated — Reliance placed on Newspaper Reports to
contend that R2 had breached oath of office, unsustainable — Instant
case, held, not warranting issuance of Writ of Quo Warranto — Petition
filed without any substance, condemned — Costs of `10,000 imposed on
Petitioner — Writ Petition dismissed. (Paras 46 - 49)
CASES REFERRED
Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale, 2012 (2) SCC 425 ..........................44
Alappey Asharaf v. Chief Minister, 2017 (5) KHC 875 ....................................................16, 41
Arun Kumar v. Union of India (UoI), AIR 1982 Raj. 67 .........................................................42
Ashok Kumar Pandey v. State of W.B., 2004 (3) SCC 349.....................................................44
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, 2013 (4) SCC 465 ............................44
B.R. Kapur v. State of Tamil Nadu, 2001 (4) CTC 219 (SC)...................................................42
Balco Employees’ Union (Regd.) v. Union of India, 2002 (1) CTC 88 (SC)...........................44
Bharati Reddy v. State of Karnataka, 2018 (6) SCC 162 .........................................................43
Common Cause (A Regd. Society) v. Union of India, 2008 (5) SCC 511 ...............................44
Devi Prasad Shukla v. State of Uttar Pradesh, 1989 Lab IC 1086 ...........................................42
Divisional Manager, Aravali Golf Club v. Chander Hass, 2008 (1) LLN 481 (SC) .................44
Dr. B. Singh v. Union of India, 2004 (3) SCC 363 ..................................................................44
Gurpal Singh v. State of Punjab, 2005 (3) LLN 110 (SC) ...................................... 20, 41, 43, 44
Guruvayoor Devaswom Managing Committee v. C.K. Rajan, 2003 (7) SCC 546 ..................44
Hardwari Lal v. Ch. Bhajan Lal, AIR 1993 P & H 3 ...............................................................42
Hari Banshi Lal v. Sahodar Prasad Mahto, 2010 KHC 4620 .............................................15, 41
J.A. Samaj v. D. Ram, AIR 1954 Pat. 297 ...............................................................................42
K.C. Chandy v. R. Balakrishna Pillai, 1985 KHC 170 ......................................................16, 41
Kallara Sukumaran v. Union of India, 1985 KHC 126 ......................................................16, 41
Kishore Samrite v. State of Uttar Pradesh, 2013 (2) SCC 398.................................................44
Mahesh Chandra Gupta v. Union of India, 2014 (1) SCC 161 ................................................43
Manohar Lal Sharma v. Sanjay Leela Bhansali, 2018 (1) SCC 770 ............................20, 41, 44
Mohammad Tafiuddin v. State of West Bengal, 1979 (2) CLJ 494.........................................42

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296 LABOUR LAW NOTES 2021 (1) LLN

Mythri Residents Association v. Secretary, Tripunithura Municipality, 2019 KHC 83220, 44, 45
N. Kannadasan v. Ajoy Khose, 2009 (7) SCC 1 ......................................................................43
Narmada Bachao Andolan v. Union of India, 2000 (10) SCC 664 ..........................................44
Neelakandan v. Union of India, 2016 (2) KHC 588...........................................................15, 41
P.L. Lakhanpal v. A.N. Ray, AIR 1975 Del. 66 .......................................................................42
Prathapan K.D. v. State of Kerala, 2015 KHC 606............................................................15, 41
Premkumar T.R. v. Mahatma Gandhi University, ILR 2018 (1) Ker. 993 ...............................43
R & M. Trust v. Koramangala Residents Vigilance Group, 2005 (3) SCC 91.........................44
Raju Puzhankara v. Kodiyeri Balakrishnan, 2009 KHC 244 .............................................16, 41
Renu v. District and Sessions Judge, Tis Hazari, 2014 (14) SCC 50 .......................................43
Rohit Pandey v. Union of India, 2005 (13) SCC 702...............................................................44
S. Gunasekaran v. Ministry of Home Affairs, W.P.(C) No.24464/2019, dated 21.8.2019.......42
S. Mahadevan v. S. Balasundaram, 1986 (1) Mad LJ 31 .........................................................42
S.P. Anand v. H.D. Deve Gowda, 1996 (6) SCC 734 ..............................................................44
State of Jaipur Shahar Hindu Vikas Samiti v. State of Rajasthan, 2014 (5) SCC 530 .............44
State of Uttaranchal v. Balwant Singh Chaufal, 2010 (3) SCC 402.........................................44
Tehseen Poonawalla v. Union of India, 2018 (6) SCC 72 .......................................................44
University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 .........................................15, 41
Vikas Vashishth v. Allahabad High Court, 2004 (13) SCC 485 ..............................................44
Villianur Iyarkkai Padukappu Maiyam v. Union of India, 2009 (7) SCC 561 .........................44
Waseem Abdullah v. J and K Academy of Art, Culture and Languages, 2004 (3) JKJ 407....42
R. Krishna Raj, E.S. Soni & Kumari Sangeetha S. Nair, Advocates for Petitioner.
P. Narayanan & V. Manu, Senior Government Pleaders for Respondent No.1.
Finding — W.P. dismissed.
JUDGMENT
S. Manikumar, C.J.
1. Dated this the 30th day of June, 2020 S. Manikumar, C.J. Instant
Public interest Writ Petition is filed seeking the following reliefs:
(i) Issue a Writ of Quo Warranto and remove the 2nd Respondent -M.C.
Josephine, Chairperson, Kerala Women’s Commission, N.H.47,
Thiruvananthapuram, from the office of the Chairperson, Kerala
Women’s Commission.
(ii) To direct the 1st Respondent - State of Kerala, to act on Exhibit-P3
Complaint, dated 8.6.2020 and initiate proceedings under Section 11 of
Kerala Women’s Commission Act, 1990, and remove the 2nd
Respondent from the office of Chairperson, Kerala Women’s
Commission, by issue of Writ of mandamus or such other Writ or order
or direction;”
2. Shorts facts leading to the filing of the Writ Petition are as follows:
The grievance of the Petitioner is that 2nd Respondent, who is the
Chairperson of Kerala Women’s Commission, has refused to perform the
functions bestowed upon her, several times, declaring that the incidents
relating to party members of CPl(M) need not be looked into or enquired
upon, as the party itself is police and the Court, that the party machinery has

Labour Law Notes / January-2021

January 2021 B. Radhakrishna Menon v. State of Kerala 297
(DB) (Ker.) (S. Manikumar, C.J.)
methods and procedures to take care of Complaints relating to the party
members, and in spite of the fact that her actions have attracted Sections
11(e) & (f) of Kerala Women’s Commission Act, the Government is
refusing to remove her from the office. Petitioner has pointed out that as per
the provisions of the Kerala Women’s Commissions Act, 1990, Women’s
Commission is constituted to improve the status of women in the State and
to inquire into unfair practices affecting women. Hence, as per the provisions
of the Act, the Commission is bound to inquire into any unfair practice
affecting women, if any such incident comes to their knowledge. If the
Commission refuses to act on any such incidents of unfair practice that is
freely available on the public domain and which is in the knowledge of the
Commission, the Commission can be said to have refused to act, as provided
in Section 11(1)(e) of the Act. As far as the 2nd Respondent is concerned,
she was appointed to the post of Chairperson because of the position she is
holding in CPl(M) viz. its central committee member. She has openly stated
on many occasions that she was appointed by CPl(M) as the member, and
that she is obliged to the party for this appointment.
There were several occasions after the 2nd Respondent has been
appointed as the Chairperson, where the Commission refused to act against
incident of unfair practice. One of such occasions was, a Complaint made
against a CPl (M) MLA on 14.8.2018 by a woman party member. The CPl
(M) has issued a Public Statement acknowledging the receipt of the
Complaint against the CPl (M) MLA and the entire media reported on
several days about the sexual harassment alleged in Complaint by the
woman against the MLA. But, the 2nd Respondent dismissed the charges of
sexual harassment stating that mistakes do happen. She has also stated that
“we are all human beings, mistakes do happen. People inside the party may
also have committed such mistakes”. She has further stated that the
Commission has not initiated any action as the woman has not filed any
Complaint. She has also stated that Commission is not in a position to
register a suo motu case as they don’t have the basic details like nature of
Complaints. She has also said that the CPl(M) would deal with this case
internally as “that is up to the party to decide. The Marxist party will have
their own system of dealing with these Complaints; it is not a new thing.
Since its inception the party has handled such Complaints”
On 6.6.2020 the 2nd Respondent again responded, to the queries made by
the press, regarding another incident where the Commission refused to act,
as follows “My party CPI(M). l may be the Chairperson of Women’s
Commission. But, l have grown through my party. My party has taken strict
stand. l know the incident you are mentioning. In that incident, the family
told me that they need action by the party as they believe in the party. Our
party is a Court and a Police Station. We will not spare any leader”. By
making this atrocious statement, the 2nd Respondent herself has admitted
and declared that CPl(M) is an investigating agency as well as judiciary for

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298 LABOUR LAW NOTES 2021 (1) LLN

the members of the party, and that, since the party is capable of handling any
Complaint of unfair practice, including sexual harassment, against their part
Workers, the Commission will not interfere in such cases even if it has its
own knowledge or information. The stand taken by the 2nd Respondent has
made it clear that she will not act in any Complaints made against the
members of CPI(M), and that she is considering her party as an investigating
agency as well as court above the Commission and, therefore, her
continuance in office as Chairperson is detrimental to the Public interest.
3. On the above pleadings, the Petitioner has filed the Writ Petition on the
following grounds:
(a) The commission has been constituted to improve the status of women
in the State of Kerala and also to enquire into the unfair practices
affecting women and for matters connected therewith or incidental
thereto. Unfair practice includes mental or physical torture or sexual
excess on women. The Act also clearly stipulate that the commission
shall inquire into any unfair practice on its own knowledge or
information. So it is very clear that the Commission is bound to initiate
inquiry and prosecution on any incident of unfair practice which comes to
its knowledge and in the public domain. But, the 2nd Respondent has
refused to even acknowledge several incidents that were available in the
domain in spite of several request made by several persons as stated in
the Writ Petition. The refusal on the part of the 2nd Respondent in
initiating action against the CPl(M) MLA was a clear case of refusal on
the part of the 2nd Respondent to act upon the knowledge of an unfair
practice. It is very pertinent to note here that even CP (M) has publicly
acknowledged by giving a press statement that it has received a
Complaint against its own MLA by a woman party Worker and the
inquiry commission appointed by the party itself has found that the MLA
has committed such offence. So it is clear that the 2nd Respondent has
refused to act on several occasions warranting her removal from the
office of the Chairperson of the Kerala Women’s Commission under
Sections 11(d) & 11(f) of the Act.
(b) The statements made by the 2nd Respondent on two occasions would
disclose that she is considering her party machinery above the Kerala
Women’s Commission by stating that her party namely CPl(M) is itself a
Court and Police Station and that the party has its own machinery to deal
with Complaints raised against party members. She has categorically
admitted that she is incapable and she is not intending to take any action
against the party Workers, who are involved in cases involving unfair
practice against any woman. She has categorically stated that in case of
woman having Complaint against members of CPl(M) need not be
inquired into by the Commission even if it has knowledge of the same as
the party machinery is capable of handling the same. She has admitted

Labour Law Notes / January-2021

January 2021 B. Radhakrishna Menon v. State of Kerala 299
(DB) (Ker.) (S. Manikumar, C.J.)
that she has knowledge about several incidents were the unfair practice
against woman involving members of CPl(M) has taken place and she
has admitted that she has refused to inquire in to such incidents and
initiate prosecution proceedings taking a stand that the Commission need
not do that as the party machinery would take care of the same. By this
stand the 2nd Respondent has abused her posting as Chairperson
rendering her continuation in the office detrimental to the Public interest.
(c) The inaction on the part of the 2nd Respondent in not initiating inquiry
and prosecution against members of CPl(M) on the ground that the
Commission need not take any action as the party would take care of the
same is illegal. The Kerala Women’s Commission is a Quasi Judicial
forum where in it is discharging the duties of Civil as well as Criminal
Court while trying a Complaint or doing its business as per the Act. lf the
2nd Respondent taking the above stand that woman having Complaints
against members of statement she has made it is now clear that the
obligation she has with the party for appointing her as the Chairperson
weighs more than the statutory duty cast upon her under the Act. As a
Chairperson of the Commission this is a clear failure on the part of the 2nd
Respondent in discharging her duties as prescribed under the Act and,
therefore, her continuance is detrimental to the Public interest. Though
several complaints have been filed by several persons, including the
Petitioner, requesting the Government to remove the 2nd Respondent from
the office of the Chairperson Kerala Women’s Commission, the
Government have not taken any action in the matter and there is no chance
that the Government will take any action because of political reason.”
4. Based on the above grounds and inviting our attention to the press
reports, Sri. R. Krishna Raj, learned Counsel for the Petitioner, submitted
that as a Chairperson of the Kerala Women’s Commission, the 2nd
Respondent has refused to act on several incidents, which were available in
public domain, in spite of requests made by several persons, and in such
circumstances, there is violation of Oath taken by the 2nd Respondent,
attracting issuance of a Writ of Quo Warranto. According to the Petitioner,
refusal to act is one of the grounds under Section 11 of the Act, 1990, to seek
for removal and thus, Exhibit-P3 Complaint, dated 8.6.2020 was made to the
Chief Secretary, Government of Kerala. As no action has been taken, instant
Writ Petition has been filed by the Petitioner.
5. Refuting the abovesaid contentions and taking this Court through the
averments made in the statement of facts, Sri. P. Narayanan, learned Senior
Government Pleader, submitted that absolutely, there is no averment to the
effect that Respondent No.2 does not satisfy the qualifications prescribed for
holding the office of Chairperson of the Kerala Women’s Commission.
6. Learned Senior Government Pleader further submitted that though the
Petitioner has made a general statement that incidents of unfair practice are

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300 LABOUR LAW NOTES 2021 (1) LLN

available in public domain, no particulars are furnished. According to the

learned Senior Government Pleader, it is the case of the Petitioner that the
2nd Respondent being a Chairperson of the Kerala Women’s Commission,
has refused to act. Placing reliance on the definitions of ‘Commission’,
‘member’, ‘unfair practice’, as defined in Section 2 of the Act, 1990 and, in
particular, to Section 5 of the Act, he submitted that the Commission is a
body comprising of Chairperson and four members, of whom, one shall be a
person belonging to SC/ST, Secretary and other members. According to the
learned Senior Government Pleader, as per the requirement of the Act, the
members of the Commission shall be persons of ability, integrity,
intelligence and standing, and have adequate knowledge or experience or
have shown ability in dealing with problems relating to safeguarding and
promoting the interests of women and protect their rights.
7. Inviting the attention of this Court to the averments made in Paragraph
3 of the statement of facts, learned Senior Government Pleader submitted
that it is the specific case of the Petitioner that the Commission is bound to
enquire into any unfair practice affecting women, if any such incident comes
to its knowledge. Having regard to the contention of the Petitioner that the
Commission had refused to act on any incident of unfair practice, which
according to him, is freely available on public domain and which is in its
knowledge, the learned Senior Government Pleader submitted that the 2nd
Respondent cannot be said to have refused to act, as provided under Section
11(1)(e) of the Act. Attention was also invited to the averment in Paragraph
3 of the statement of facts filed by the Petitioner, that on several occasions
after the appointment of 2nd Respondent, as the Chairperson, the
Commission has refused to act against incidents of unfair practice, which
includes sexual excess on women where members of CPI(M) are involved.
Our attention was further invited to the opening sentence of Paragraph (4) of
the statement of facts, where the Petitioner has averred that on 6.6.2020, the
2nd Respondent again responded to the queries made by the members
regarding another incident, wherein the Commission has refused to Act.
However, the Petitioner has contended that the 2nd Respondent as the
Chairperson of the Kerala Women’s Commission has refused to act.
8. Taking this Court through Section 7 of the Act, 1990, learned Senior
Government Pleader submitted that the quorum for a meeting of the
Commission shall be four. Inviting the attention of this Court to Section 8 of
the Act, 1990, learned Senior Government Pleader submitted that the
Chairperson of the Commission cannot decide any question unilaterally and
as per Section 8 of the Act, which deals with disposal of business, the
meeting of the Commission shall be presided over by the Chairperson or in
her absence, a member chosen for that purpose by the members present and
that the minimum quorum required is four.

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January 2021 B. Radhakrishna Menon v. State of Kerala 301
(DB) (Ker.) (S. Manikumar, C.J.)
9. Referring to Section 11 of the Act, 1990, which deals with removal of
members from office, in particular to Clause (d), which deals with refusal to
act or becomes incapable of acting by a member (other than the Secretary) of
the Commission, learned Senior Government Pleader submitted that the said
expression refusal to act or become incapable of acting, can be referable only
to physical or mental disability of any member (other than the Secretary). He
further submitted that as per the provisions of Act, 1990, no member,
including Chairperson, can take cognizance of any Complaint or refuse to
take cognizance, in her capacity as member or Chairperson. In this context,
he also invited our attention to Section 16 of the Act, which deals with the
functions of the Commission.
10. Learned Senior Government Pleader further submitted that as per
Section 16 of the Act, the Commission alone shall perform all or any of the
functions, which include to inquire into any unfair practice, to take decision
thereon, and to recommend to the Government, the action to be taken in that
matter. He further submitted that no member, including a Chairperson, can
independently take a decision for taking cognizance of a complaint regarding
unfair practice and, therefore, the contention of the Petitioner that the 2nd
Respondent has refused to act or to inquire into a Complaint of unfair
practice, which according to the petitioner, was available in public domain,
is contrary to the Statute.
11. Referring to Section 17 of the Act, learned Senior Government
Pleader submitted that the Commission shall inquire into any unfair practice
or, (a) on receiving a written Complaint from any woman alleging that she
has been subjected to any unfair practice or on a similar Complaint from any
registered women’s organisation, (b) on its own knowledge or information,
and (c) on any request from the Government. According to the learned
Senior Government Pleader, in the case on hand, Petitioner by placing any
document, has not proved that there were materials in public domain. No
Complaint was submitted by any person to the Commission. Even before
this Court, no material has been placed by the Petitioner to substantiate his
contention that any complaint was given to the Commission and that, the
Commission has refused to act.
12. Inviting the attention of this Court to Section 28 of the Act, learned
Senior Government Pleader submitted that the Government, may by
Notification in the Gazette, make rules for the purpose of carrying into effect
the provisions of the Act, in particular, to the procedure for removal of
members of the Commission under Section 11 and procedure for inquiries
under Section 17 of the Act, 1990.
13. Referring to Rule 3 of the Kerala Women’s Commission (Procedure
For Investigation and Inquiry into Unfair Practices) Rules, 2003, learned
Senior Government Pleader submitted that a specific procedure is
contemplated for registration of Complaints and preliminary investigation.

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According to him, the details of information regarding unfair practice

received by the Commission and reduced to writing shall be forwarded to the
Registering Officer under Clause (b) of sub-section (1) of Section 17. He
also submitted that if any request in writing is received by the Commission
from the Government, the same shall be forwarded to the Registering
Officer. He referred to Rule 4 of the Rules, which deals with rejection of
Complaint. He also referred to Rule 6 - Inquiry, which prescribes that after
considering the Complaint and the report placed before it, the Commission
has to take a decision and proceed further. Reference has also been made to
Rule 7 of the said rules which deals with the findings and orders of the
Commission.
14. Thus, after referring to various provisions of the Act, 1990 and the
rules framed thereunder, learned Senior Government Pleader submitted that
both, under the Act and the rules, power is given only to the Commission to
inquire into any Complaints, take decisions in the matter, and in the absence
of any material before the Commission, contention of the Petitioner that the
2nd Respondent has refused to act on the Complaint relating to any unfair
practice, is contrary to the statutory provisions. In this context, learned
Senior Government Pleader also placed reliance on Rules 3, 9 & 11 of the
Kerala Women’s Commission (disposal of Business) Rules, 2001, which
explain as to how the meetings of the Commission have to be convened,
quorum required for the meeting and the questions to be decided by the
majority of votes by the Commission. Thus, in sum and substance, he
submitted that the statutory provisions do not permit a member or a
Chairperson to take a decision independently and, therefore, there cannot be
any allegation against the Chairperson, refusing to act, more so, when the
contention of the Petitioner in Paragraph (3) of the statement of facts is that
the Commission has refused to act.
15. Relying on the decisions in University of Mysore v. C.D. Govinda
Rao, AIR 1965 SC 491; Hari Banshi Lal v. Sahodar Prasad Mahto &
others, 2010 KHC 4620; Prathapan K.D. v. State of Kerala and others,
2015 KHC 606; and Neelakandan v. Union of India and others, 2016 (2)
KHC 588, learned Senior Government Pleader submitted that there is
absolutely no averment in the statement of facts or in the grounds raised in
the Writ Petition that the 2nd Respondent does not possess the qualifications
prescribed for the post of member or Chairperson of the Kerala Women’s
Commission, as the case may be. According to him, Writ Petition is totally
silent regarding the abovesaid aspect. In such circumstances, Writ Petition
filed for a Writ of Quo Warranto deserves to be dismissed in limine.
16. Learned Senior Government Pleader has further submitted that if the
initial appointment of holder in office is valid, satisfying the qualifications
prescribed under the Statute or the rules framed thereunder, any subsequent
conduct will not be a ground of disqualification for issuance of a Writ of

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January 2021 B. Radhakrishna Menon v. State of Kerala 303
(DB) (Ker.) (S. Manikumar, C.J.)
Quo Warranto. He also submitted that even if there is a breach of oath, the
same cannot be a ground to issue a Writ of Quo Warranto. In support of the
above contention, he relied on the decisions of this Court in K.C. Chandy v.
R. Balakrishna Pillai, 1985 KHC 170; Kallara Sukumaran v. Union of
India, 1985 KHC 126; Raju Puzhankara v. Kodiyeri Balakrishnan and
others, 2009 KHC 244; and Alappey Asharaf v. Chief Minister and others,
2017 (5) KHC 875.
17. For the above reasons, learned Senior Government Pleader submitted
that prayer (i) sought for by the Petitioner is liable to be dismissed.
18. As regards the 2nd prayer sought for by the Petitioner i.e. issuance of
a direction to the 1st Respondent, to act on Exhibit-P3 representation and to
initiate proceedings under Section 11 of the Kerala Women’s Commission
Act, 1990, and to remove the 2nd Respondent from the office of
Chairperson, Kerala Women’s Commission, by issuance of a Writ of
mandamus or such other writ or order or direction, learned Senior
Government Pleader submitted that Exhibit-P3 is not a statutory
representation under the Act and that the Petitioner has no legal right to
make any such representation. There is no prima facie case to consider the
representation even though the Petitioner has alleged that the 2nd
Respondent has refused to act. It is the further submission of the learned
Senior Government Pleader that, the Statute empowers only the Commission
to conduct an inquiry and take a decision, as per the procedure set out above.
According to him, even the Petitioner has candidly admitted that the
Commission has not acted upon the materials in public domain and,
therefore, alleging that the 2nd Respondent has refused to act, does not
require any consideration by the Chief Secretary to Government, State of
Kerala, Thiruvannathapuram (Respondent No.1). Hence, the 2nd prayer
sought for by the Petitioner is liable to be rejected.
19. Taking this Court through the contents of Exhibit-P3 representation,
learned Senior Government Pleader submitted that in the representation, the
Petitioner has referred to the alleged act of refusal by the 2nd Respondent,
quite contrary to the pleadings in Paragraph (3) of the statement of facts, as
to who has the authority to decide, to inquire, which according to the learned
Senior Government, it is only the Commission, and not the Chairperson.
According to the learned Senior Government Pleader, statutory provisions
envisage inquiry into a Complaint and disposal only by the Commission. It is
the further contention of the learned Senior Government Pleader that there is
no bona fides in the Writ Petition. Public interest litigation has been filed
purely for publicity, without any materials.
20. Referring to the decisions of the Hon’ble Supreme Court in Gurpal
Singh v. State of Punjab and others, 2005 (3) LLN 110 (SC) : 2005 (5)
SCC 136; Manohar Lal Sharma v. Sanjay Leela Bhansali & others, 2018
(1) SCC 770, and a Hon’ble Division Bench of this Court in Mythri

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304 LABOUR LAW NOTES 2021 (1) LLN

Residents Association v. Secretary, Tripunithura Municipality and others,

2019 KHC 832, learned Senior Government Pleader submitted that Writ
Petition filed without any valid materials requires to be dismissed with costs.
21. On the submissions of the learned Senior Government Pleader and to
a specific query, as to whether the Petitioner has satisfied the requirements
for issuance of a Writ of Quo Warranto, as held by the Hon’ble Supreme
Court, and whether, on the facts and circumstances, and giving due
consideration to the decisions referred to by the learned Senior Government
Pleader, this Court comes to the conclusion that instant Writ Petition does
not satisfy the requirements of a Public interest Litigation, for issuance of a
Writ of Quo Warranto, and liable to be dismissed with costs, Mr. Krishna
Raj, learned Counsel for the Petitioner, submitted that the Petitioner is a
genuine person and costs need not be imposed. We take note of the said
submission.
22. Heard the learned Counsel for the parties and perused the material
available on record.
23. Exhibit-P3 representation submitted by the Petitioner before the Chief
Secretary, Government of Kerala, dated 8.6.2020, is extracted hereunder:
“Before the Chief Secretary, Government of Kerala representation by B.
Radhakrishna Menon, Sree Nikethen, Thrikkodithanam, Changanacherry
1. The grievance of the Complainant is that M.C Josephine, who is the
chairperson of Kerala Women’s Commission has refused to act on incidents of
unfair practice involving members of CPl(M) stating that “We are all human
beings, mistakes do happen. People inside party may also have committed such
mistakes”. She has also stated that the Commission has not initiated any action
as the woman has not filed any Complaint. She has also said that Commission is
not in a position to register a suo motu case as they don’t have the ‘basic details
like nature of Complaint. She has also said that the CPl(M) would deal with this
case internally as that is up to the party to decide. Marxist party will have their
own system of dealing with these Complaints; it is not a new thing. Since its
inception the party has handled such Complaints”
2. She has also stated that “My party CPl(M). I may be the Chairperson of
Women’s Commission. But I have grown through my party. My party has taken
strict stand. I know the incident you are mentioning. In that incident the family
told me that they need action by the party as they believe in the party. Our party
is a Court and a Police Station. We will not spare any leader.
3. By taking such a stand in cases of unfair practices involving the members of
CPM, she has refused to act and discharge the duties cast upon her under the
Kerala Women’s Commission Act and therefore she is unfit to continue in that
post. So it is most humbly prayed that may be pleased to initiate action against
M.C. Josephine under Section 11 of the Kerala Women’s Commission Act and
remove from her from the office.”
Dated this the 8th day of June 2020 B. Radhakrishna Menon”

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January 2021 B. Radhakrishna Menon v. State of Kerala 305
(DB) (Ker.) (S. Manikumar, C.J.)
24. The Kerala Women’s Commission Act, 1990 (Act 17 of 1995) is an
Act to provide for the constitution of a Women’s Commission to improve
the status of women in the State of Kerala and to enquire into unfair
practices affecting women and for matters connected therewith or incidental
thereto.
25. Section 2(a) of the Act defines “Commission”, which means the
Commission constituted under Section 5.
26. Section 2(d) of the Act, defines “member”, which means a member of
the Commission and includes the Chairperson.
27. Section 2(i) of the Act defines “unfair practice” and it reads thus:
“Unfair practice” means any distinction, exclusion or restriction made on the
basis of sex for the purpose of or which has the effect of impairing or nullifying
the recognition, enjoyment or exercise by women of fundamental constitutional
rights, or of human rights, or of fundamental freedom in the political, economic,
social, cultural, Civil or any other field or the infringement of any right or benefit
conferred on women by or under the provisions of any law for the time being in
force or the mental or physical torture or sexual excesses on women.”
28. Section 5 of the Act speaks about the Constitution of the Commission
and the same is reproduced hereunder:
“(1) For the purpose of this Act the Government shall, by Notification in the
Gazette, constitute a Commission to be known as “the Kerala Women’s
Commission”, consisting of the following members, namely:
(a) a Chairperson, who is committed to the cause of women, with sufficient
knowledge and experience in dealing with women’s problems:
(b) not more than four other members, of whom one shall be a person
belonging to a Scheduled Caste or a Scheduled Tribe:
(c) the Secretary of the Commission
(2) The members appointed by the Government under Clauses (a) & (b) shall be
women.
(3) The members of the Commission shall be persons of ability, integrity,
intelligence and standing and have adequate knowledge or experience or have
shown ability in dealing with problems relating to safeguarding and promoting
the interests, of women and protecting their rights.”
29. Section 6 of the Act speaks about the term of office and conditions of
service of members and the same is extracted hereunder:
“(1) Every member [other than the Secretary] shall hold office for a period of
five years.
(2) Notwithstanding anything contained in sub-section (l), a member ‘[other than
the Secretary] may:

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306 LABOUR LAW NOTES 2021 (1) LLN

(i) by writing under his hand and addressed to the Government resign his office
at any time;
(ii) be removed from his office in accordance with the provisions of Section 11.
(3) A vacancy arising by reason of resignation or removal of any member of the
Commission under sub-section (2) or otherwise shall be filled up in accordance
with the provisions contained in Section 5:
Provided that a person so appointed shall hold office for the remaining period of
the ten of the person in whose place such person is appointed:
(4) The members [other than the Secretary] shall receive a fixed honorarium and
other allowances and shall be governed by such conditions of service, as may be
prescribed:
Provided that the fixation of the honorarium shall be without taking into
consideration the past service rendered by the person in any capacity before his
appointment as a member.]”
30. Section 7 of the Act, 1990 reads thus:
“7. Quorum.— The quorum of a meeting of the Commission shall be four.”
31. Section 8 of the Act, 1990 reads thus:
“8. Disposal of Business.— (1) The meeting of the Commission shall be presided
over by the Chairperson or in her absence a member chosen for the purpose by
the members present.
(2) All questions at a meeting of the Commission shall be decided by the
majority of the votes of the members present and voting and in case of equality
of votes the Chairperson or the member presiding, as the case may be, shall have
a second or casting vote.
(3) The Commission may invite, if it is considered necessary, for such purposes
and on such conditions as may be prescribed, any person with expert knowledge
in a particular subject to be present at the meeting to assist the Commission in
arriving at a decision but such person shall not be entitled to vote.”
32. Section 11 of the Act speaks about Removal of members from office
and the same is extracted hereunder:
“(1) Any member ‘[other than the secretary] of the Commission may be removed
from office by an order of the Government, if he:
(a) becomes an undischarged insolvent;
(b) is convicted and sentenced to imprisonment for an offence which involves
moral turpitude;
(c) becomes of unsound mind;
(d) refuses to act or becomes incapable of acting;
(e) is without obtaining leave of absence from the Commission absents from
three consecutive meetings of the Commission; or

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January 2021 B. Radhakrishna Menon v. State of Kerala 307
(DB) (Ker.) (S. Manikumar, C.J.)
(f) In the opinion of the Government has so abused the position of Chairperson
or member as to render that person’s continuance in office detrimental to the
Public interest:
Provided that a member shall not be removed under this section until that person
has been given a reasonable opportunity of being heard in the matter.
[(2) The Secretary shall hold office during the pleasure of the Government.]”
33. Section 15 of the Act speaks about powers of the Commission and the
same reads thus:
“(1) The Commission shall, for the purpose of any inquiry under this Act, have
the same powers as are vested in a Civil Court while trying a Suit under the Code
of Civil Procedure, 1908 (Central Act of 1908), in respect of the following
matters, namely:
(a) summoning and enforcing the attendance of any witness and examining
him:
(b) requiring the discovery and production of any document:
(c) receiving evidence on Affidavits:
(d) requisitioning any Public Records or copy thereof from any Public Officer.
(e) issuing commissions for the examination of witnesses.
(2) any proceeding before the Commission shall be deemed to be a judicial
proceeding within the meaning of Sections 193 & 228 of the Indian Penal Code
(Central Act 45 of 1860) and the Commission shall be deemed to be a Court for
the purpose of section 195 of the Code of Criminal Procedure, 1973 (Central Act
2 of 1974).”
34. Section 16 of the Act speaks about the functions of the Commission
and the same reads thus:
“(1) The Commission shall perform all or any of the following functions.
namely:
(i) inquire into any unfair practice, take decision thereon and to recommend to
the Government the action to be taken in that matter;
(ii) cause in investigations to be made by the Director on issues of importance
concerning women and issues concerning unfair practice and to report thereon
to the Government on the corrective measures to be taken;
(iii) submit to the Government annual report on,—
(a) the lacunae, inadequacies, or shortcomings in the laws in force which
affect the constitutional right to equality and fair treatment of women and
also on the remedial legislative measures to be taken to meet the situation;
(b) the monitoring of the working of laws in force concerning women with a
view to identifying the areas where the enforcement of laws is not
adequately effective or has not been streamlined and recommending
executive or legislative measures to be taken;

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308 LABOUR LAW NOTES 2021 (1) LLN

(c) monitoring the recruitments made to State Public Services and State
Public Undertakings and promotions within the said services and
scrutinizing the rules and regulations governing such recruitments and
promotions with a view to reporting to the Government action, if any,
required to guarantee equal opportunity to women in the matter of such
recruitments and promotions;
(iv)(a) inspect or cause to be inspected, by the Director or any officer of the
Commission authorised by the Commission in that behalf, prisons, Police
stations, lock-ups, sub-jails, rescue homes or other places of custody
where women are kept as prisoners or otherwise, or shelters for women or
other places run by the Government or any of its agencies including
agencies receiving aid from the Government for the purpose of offering
rescue or shelter to women. or hostels intended for women or girls run by
any person and such other places wherein unfair practice to women is
complained of and cause further. Inquiries to be made about the treatment
that women and girls are subjected to at such places and to report to the
Government for taking remedial action.
(b) in cases where the Commission is of the view that any Public servant has
been grossly negligent or grossly indifferent in regard to the discharge of
his duties in relation to the protection of the interests of women
recommended to the concerned disciplinary authority to initiate
disciplinary action;
(v) recommend to Government, the welfare measures to be adopted and
implemented by the Government with a view to ameliorating the conditions of
women;
(vi) formulate a comprehensive and affirmative scheme for securing equal
opportunities to women and devise a programme for implementing such
scheme which shall be forwarded to the Government for approval and on
obtaining approval thereof with or without modifications, implement the same;
(vii) empower the Director to recommend to the appropriate authority to take
prosecution proceedings in respect of offences committed against women
under any statute providing for penalty for violation of the provisions of such
statute.
(viii) maintain comprehensive Data Bank relating to the social, economic and
political conditions of women including comparative study, updating the same
from time to time making available such data for use in actions for vindication
of the rights of women;
(ix) recommend to Government to initiate legislation for removal of
discrimination in the case of inheritance, guardianship, adoption and divorce or
for matters relating to the safeguarding of the dignity of women and the honour
of motherhood;
(x) call for special studies or investigations into specific problems or situations
arising out of discrimination and atrocities against women and identify the
constraints so as to recommend strategies for their removal;

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January 2021 B. Radhakrishna Menon v. State of Kerala 309
(DB) (Ker.) (S. Manikumar, C.J.)
(xi) participate and advise on the planning process of socio-economic
development of women:
(xii) fund litigation involving issues affecting a large body of women;
(xiii) make periodical reports to the Government on any matter pertaining to
women and in particular various difficulties under which women toil;
(xiv) undertake promotional and educational research so as to suggest ways of
ensuring due representation of women in all spheres and identify factors
responsible for impeding their advancement, such as, lack of access to housing
and basic services, inadequate support services and technologies for, reducing
drudgery and occupational health hazards and for increasing their productivity;
(xv) any other matter which may be referred to it by the Government.
(2) The Government shall lay the recommendations of the commission under
sub-section (1) before the Legislative Assembly during its next session and cause
action to be taken thereon by the authority concerned within two months from
the date of laying such recommendations.”
35. Section 17 of the Act deals with inquiry into unfair practices and the
same reads thus:
“(1) The Commission shall inquire into any unfair practice,-
(a) on receiving a Written Complaint from any woman alleging that she has
been subjected to any unfair practice or on a similar Complaint from any
registered women’s organisation;
(b) on its own knowledge or information:
(c) on any request from the Government.
(2) Where the Complaint has been made under Clause (a) of sub-section (1), the
Commission may, before the issue of any process to the person complained
against, cause a preliminary investigation to be made by the Director in such
manner as it may deem fit, for the purpose of satisfying itself that the Complaint
requires to be inquired into.
(3) where the person against whom the Complaint has been made, appears and
shows cause or fails to appear on the day appointed for that purpose the
Commission may proceed to inquire into the matter in the Complaint and take a
decision thereon and if the Commission finds that there is unfair practice, it shall
recommend to the Government the action to be taken thereon or initiate
prosecution.
(4) The Government shall, within two months from the date of receipt of the
recommendation of the Commission under sub-section (3) take a decision
thereon and intimate the same to the Commission.”
36. Section 18 of the Act deals with initiation of prosecution and the
same reads thus:
“If, after investigation into any Complaint under Section 17, the Commission is
satisfied that a person has committed any Criminal offence and that he should be

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310 LABOUR LAW NOTES 2021 (1) LLN

prosecuted in a Court of law for such offence, then it may pass an order to that
effect and initiate prosecution of the person concerned, if there is no necessity
for prior sanction, and if prior sanction of any authority is required for such
prosecution, then not withstanding anything contained in any law, such sanction
shall be granted by that authority within thirty days of the request by the
Commission and if such sanction is not granted within the said period such
sanction shall be deemed to have been granted by that authority.”
37. Section 28 of the Act, 1990, which speaks about the power to make
rules, and the same reads thus:
“(1) The Government may by Notification in the Gazette, make rules for the
purpose of carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power,
such rules may provide for,—
(a) the honorarium, allowances and other conditions of service of the members;
the salary, allowances and other conditions of service of the Secretary, the
Director and other staff of the Commission;
(b) procedure for removal of the members of the Commission under Section
11;
(c) the procedure for registration under Section 14 of the Act;
(d) procedure for inquiries under Section 17 of the Act;
(e) investigations by the Director;
(f) Procedure for inspection of prisons, Police Stations, lock ups, sub-jails.
rescue homes or other places of custody where women are kept as prisoners or
otherwise or shelters for women or other places run by the Government or any
of its agencies including agencies receiving aid from the Government for the
purpose of offering rescue or shelter to women or hostels intended for women
or girls run by any person and such other places wherein unfair practice to
women or girls is complained of or for holding of enquiries about the treatment
that women or girls are subjected to at such places;
(g) maintaining a Data Bank;
(h) the formulation of comprehensive and affirmative scheme for securing,
equal opportunity to women and for the improvement and uplift of women and
programme for its implementation;
(i) procedure for recommending prosecution in respect of offences committed
against women under any statute;
(j) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is
made, before the Legislative Assembly, while it is in session, for a total period of
fourteen days, which may be comprised in one session or in two successive
sessions and if, before the expiry of the session in which it is so laid or the
session immediately following, the Legislative Assembly makes any
modification in the rule or decides that the rules should not be made, the rule

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January 2021 B. Radhakrishna Menon v. State of Kerala 311
(DB) (Ker.) (S. Manikumar, C.J.)
shall thereafter have effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.”
38. In exercise of the powers conferred by Clauses (d) & (e) of sub-
section (2) of Section 28 of the Kerala Women’s Commission Act, 1990 (17
of 1995), Government of Kerala have framed the Kerala Women’s
Commission (Procedure For Investigation and Inquiry Into Unfair Practices)
Rules, 2003. Sections 3, 4 & 7 of the said Rules relevant to the context, read
thus:
“3. Registration of complaints and preliminary investigation.— (1) The
Registering Officer shall register—
(a) all Complaints received under Clause (a) of sub-section (1) of Section 17:
(b) details of the information regarding unfair practice received by the
Commission and reduced to writing and forwarded to the Registering Officer
under Clause (b) of sub-section (1) of Section 17;
(c) request in writing received by the Commission from the Government and
forwarded to the Registering Officer under clause (c) of sub-section (1) of
Section 17 in the Register in Form A and assign the register number and shall
submit the same to the Commission in docket sheet in Form B.
(2) The Registering Officer shall acknowledge the receipt of the Complaints in
Form C.
(3) The Director or the Officer authorised shall conduct a scrutiny of the
Complaint and it he is of opinion that the Complaint is not maintainable he shall
place the Complaint before the Commission for necessary orders.
4. Rejection of Complaint.— If after considering the Complaint it is found that
the same is not maintainable the decision shall be communicated in writing to the
Complainant.
7. Findings and orders of the Commission.— (1) On conclusion of the enquiry,
after considering the Complaint, statement, reports, documents and other
materials on record, the Commission shall pass an order recording its findings
and such order shall be signed by the Chairperson and Members of the
Commission.
(2) If the unfair practice found as in the opinion of the Commission is of such a
nature that it is for the Government to take action in the matter the Commission
shall forward its order with its recommendations to the Government regarding
the action to be taken in the matter.
(3) If it is found that a person has committed any act which amount to a Criminal
offence, the Commission may direct its Director or any other Officer authorized
by the Commission in that regard to initiate prosecution. In such cases the
Commission shall forward a copy of its order along with the documents and
other records to the concerned officer.”

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39. In exercise of the powers conferred by Section 28 the Kerala

Women’s Commission Act, 1990 r/w. Section 8 thereof, Government of
Kerala have framed the Kerala Women’s Commission (Disposal of
Business) Rules, 2001. Sections 3, 9 & 11 relevant to the context, read thus:
“3. Meeting of the Commission.— (1) The Secretary shall, in consultation with
the Chairperson, convene meetings of the Commission once in a month for the
disposal of its business but the Chairperson may at any time direct the Secretary
to convene an extra-ordinary meeting if she considers it necessary to do so.
(2) Notwithstanding anything contained in sub-rule (1) the Secretary shall
convene an extra-ordinary meeting of the Commission on the requisition made to
the Secretary in writing for the purpose by not less than four members.
(3) The Commission shall hold its meetings ordinarily at Thiruvananthapuram
but it may hold meetings at any other place in the State.
9. Quorum.— The quorum for a meeting of the Commission shall be four.”
“11. Questions to be decided by majority of votes.— All questions at a meeting
of the Commission shall be decided by the majority of the votes of the members
present and voting and in case of equality of votes the Chairperson or the
member presiding, as the case may be shall have a second or casting vote.”
40. In exercise of the powers conferred by Clause (a) & (b) of sub-section
(2) of Section 28 of the Kerala Women’s Commission Act, 1990 (17 of
1995) r/w. sub-section (4) of Section 6 thereof, and in supersession of the
existing rules, in this subject matter, Government of Kerala have framed the
Kerala Women’s Commission (Honorarium, Allowances and Other
Conditions of Service and Procedure For Removal of Members) Rules,
2003, to provide for the honorarium, allowances and other conditions of
service of the members and the procedure for the removal of members.
Section 5 relevant to the context, reads thus:
“5. Removal of a Member from office.— (1) If the Government are of opinion
that there is sufficient grounds for removing a Member under Section 11, she
shall be served with a notice requiring her to show cause, within the period
specified therein, but not exceeding fourteen days, why she should not be
removed from office for reasons recorded in such notice.
(2) If such explanation is received within the time limit, the Government may
examine it on merits and pass appropriate orders. Before passing such orders the
Government shall give an opportunity of being heard in person, if a request, in
writing, for the same is made to the Government.
(3) If no explanation is received within the time limit fixed, the Government may
proceed on the presumption that the Member/Chairperson has no explanation to
offer.
(4) If, after examination of the entire matter under sub-rule (2), the Government
have come to the conclusion that there exists a ground for removing the Member
under Section 11, they may pass an order for removal of the Members as such,
stating the reasons therefor and serve a copy thereof to the Member concerned.

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January 2021 B. Radhakrishna Menon v. State of Kerala 313
(DB) (Ker.) (S. Manikumar, C.J.)
(5) An order for the removal of a Member under sub-rule (4) shall take effect
from the date of such order.”
41. Before adverting to the rival submissions made by learned Counsel
for the parties, we take note of the decisions relied on by the learned Senior
Government Pleader, and also the decisions on quo warranto.
“(i) Learned Senior Government Pleader made reference to Paragraphs 6
to 9 of the Judgment in University of Mysore and ors. v. C.D. Govinda
Rao and ors., AIR 1965 SC 491, which read thus:
“6. The Judgment of the High Court does not indicate that the attention of the
High Court was drawn to the technical nature of the Writ of Quo Warranto,
which was claimed by the Respondent in the present proceedings, and the
conditions which had to be satisfied before a writ could issue in such
proceedings.
7. As Halsbury has observed:
“An information in the nature of a quo warranto took the place of the obsolete
Writ of Quo Warranto, which lay against a person, who claimed or usurped an
office, franchise, or liberty, to inquire by what authority he supported his claim,
in order that the right to the office or franchise might be determined.”
8. Broadly stated, the quo warranto proceeding affords a judicial remedy by
which any person, who holds an independent substantive Public Office or
franchise or liberty, is called upon to show by what right he holds the said office,
franchise or liberty, so that his title to it may be duly determined, and in case the
finding is that the holder of the office has no title, he would be ousted from that
office by Judicial Order. In other words, the procedure of quo warranto gives the
Judiciary a weapon to control the Executive from making appointment to Public
office against law and to protect a citizen from being deprived of Public office to
which he has a right. These proceedings also tend to protect the public from
usurpers of Public office, who might be allowed to continue either with the
connivance of the Executive or by reason of its apathy. It will, thus, be seen that
before a person can effectively claim a Writ of Quo Warranto, he has to satisfy
the Court that the office in question is a Public office and is held by a usurper
without legal authority, and that inevitably would lead to the enquiry as to
whether the appointment of the alleged usurper has been made in accordance
with law or not.
9. In the present case, it does not appear that the attention of the Court was
drawn to this aspect of the matter. The Judgment does not show that any
statutory provisions for rules were placed before the Court and that in making the
appointment of Appellant No.2 these statutory provisions had been contravened.
The matter appears to have been argued before the High Court on the assumption
that if the appointment of Appellant No.2 was shown to be inconsistent with the
qualification as they were advertised by Appellant No.1, that itself would justify
the issue of a Writ of Quo Warranto. In the present proceedings, we do not
propose to consider whether this assumption was well-founded of not. We
propose to deal with the appeals on the basis that it may have been open to the
High Court to quash the appointment of Appellant No.2 even if it was shown that

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one or the other of the qualifications prescribed by the advertisement published

by Appellant No.1 was not satisfied by him.”
(ii) In K.C. Chandy v. R. Balakrishna Pillai, AIR 1986 Ker. 116 : 1985
KHC 170, a Hon’ble Full Bench of this Court, had occasion to consider
as to whether a Writ of Quo Warranto can be issued. Short facts leading
to the decision are as follows:
“According to the Petitioner, on May 25, 1985, at a public meeting at
Ernakulam, the Respondent, then a Minister in the Kerala Cabinet, incited the
people to resort to terrorism and to wage a war against the Union of India on the
‘Punjab model’, to achieve their objectives. On June 4, 1985, the Petitioner, who
is stated to be a citizen, who believes in upholding the sovereignty and integrity
of the country, filed this writ for the issue of an information in the nature of quo
warranto preventing the Respondent from exercising the authority of his office,
on the ground that the public speech alleged to have been made by him on May
25, 1985, amounted to breach of oath taken by him at the time of his assuming
the office of the Minister, and, therefore, he had forfeited his right to continue in
that office. On June 5, 1985, the learned Judge before whom the Writ Petition
came up for admission, ordered issue of notice, making, at the same time, some
observations. On the same day, the Respondent tendered his resignation which
was accepted by the Governor. In the Counter-Affidavit filed by the Respondent,
he has denied the allegation that he incited the people to wage a war against the
Union of India on the ‘Punjab model’, for achieving their objective. Ext.P1 is a
copy of the ‘Financial Express’ dated 3.6.1985 carrying the report of the speech
alleged to have been made by the Respondent on May 25, 1985.”
The Hon’ble Full Bench discussed and decided thus:
“2. The main questions that fall for decision in this Writ Petition are:
(1) whether breach of oath committed by a Minister would be a constitutional
impediment for his continuance in office; and
(2) whether, in such circumstances, a Writ of Quo Warranto or an information
in the nature of quo warranto would be issued from this Court.
5. In fact, as far as we could see, breach of oath of office is not a disqualification
specified in the Constitution or under any law made by Parliament. Even then, it
could not be assumed that there is no sanctity to the oath taken before
assumption of office or that there is no authority to take action if there is
violation of that oath. Article 164(3) insists that no Minister could enter upon his
office unless the Governor administers to him the oaths of office and of secrecy.
The constitutional requirement of an oath before assumption of office could not
thus be treated merely as ‘an additional moral obligation’ (as stated by
Willoughby in Vol. III, II Edn. of The Constitutional Law of the United States)
without any legal consequences whatsoever. The oath of office insisted upon
under the Constitution is the prescription of a fundamental code of conduct in the
discharge of the duties of these high offices. The oath binds the person
throughout his tenure in that office, and he extricates himself from the bonds of
the oath only when he frees himself from the office he holds. Breach of this
fundamental conduct of good behaviour may result in the deprivation of the very

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January 2021 B. Radhakrishna Menon v. State of Kerala 315
(DB) (Ker.) (S. Manikumar, C.J.)
office he holds. When posts are held, not at the pleasure of the President or the
Governor, but during ‘good behaviour’ breach of the oaths of office and of
secrecy may attract the impeachment clauses and when posts are held at the
pleasure of the President or the Governor, the termination, at their will, of the
tenure may be the possible outcome of such breach.
8. Breach of oath is different from absence of oath. Absence of oath prevents
entry into office while breach affects the continuance after a valid entry. If no
oath is taken before assumption of office as enjoined by the Constitution, there is
no legal title to hold that office and a Writ of Quo Warranto will naturally go
from this Court. Similarly, a Minister, who, for any period of six consecutive
months, is not a member of the Legislature of the State shall, at the expiration of
that period, cease to be a Minister. This is the mandate of Article 164(3) of the
Constitution. A person without authority cannot function; and the jurisdiction
under Article 226 could be invoked to prevent that usurper in office from
functioning.
9. Breach of oath requires a termination of the tenure of office. This power can
be exercised by the appointing authority under the Constitution, and according to
the procedure, if any, prescribed therein. The termination of that tenure is not the
function of a Court; and it would not be appropriate to exercise jurisdiction under
Article 226 in such cases. Proceedings under Article 226 in such cases do not lie.
It was Jefferson who said:
“Our peculiar security is in the possession of a written Constitution; let us not
make it a blank paper by construction” (Government by Judiciary -- Raoul
Berger -- p. 304).
10. The question as to whether there was breach of oaths of office and of secrecy
committed by a Minister is outside Judicial Review under Article 226 of the
Constitution. It is to be decided by other appropriate forums; and in the case of
the Minister in a State, it falls within the discretionary domain of the Chief
Minister and/or the Governor. Breach of oath prescribed by the Constitution
may, in certain circumstances, attract the penal provisions under the Indian Penal
Code. When the Criminal Law is set in motion, it is of course for the Criminal
Court to decide whether an offence has been committed or not. That is an
independent remedy which does not affect the Constitutional power, of
withdrawing the pleasure to continue in office, ingrained in Article 164(1). As
Raoul Berger refers in ‘Government by Judiciary’ at page 293: ‘Judiciary was
designed to police constitutional boundaries, not to exercise supra constitutional
police making decisions’ -- (Hamilton).
12. The next question that would naturally arise would be whether a Writ of Quo
Warranto would be issued if a Minister is found to have committed breach of
oath. For our limited purpose it might not be necessary to trace the historical
background of the Writ of Quo Warranto. Suffice it to examine whether a Writ
of Quo Warranto can issue in respect of an appointment held at the pleasure of
the appointing Authority. In one of the earliest cases, Darley v. The Queen, 12
Clause & F. 520 (537), Tindal, C.J. expressed thus:
“This proceeding by information in the nature of quo warranto will lie for
usurping an office, whether created by charter alone, or by the Crown, with the
consent of Parliament, Provided the office be of a public nature, and a

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substantive office, not merely the function or employment of a deputy or

servant held at the will and pleasure of others, for with respect to such an
employment, the Court certainly will not interfere and the information will not
properly lie.” and proceeded to hold in that case thus:
‘The function of the treasurer were clearly of a public nature.....and it is
equally clear that though appointed by the Magistrate, he is not removable at
their pleasure, and not, we think, be treated not as their servant, but as an
independent officer.”
14. It would be appropriate at this stage to advert to the ruling of the Division
Bench of this Court in Sukumaran v. Union of India, AIR 1986 Ker 122 : 1985
Ker LT 567. The Division Bench ruling cannot be understood to lay down a
proposition that breach of oath will not entail a termination of the tenure in
office. The decision only held that breach of oath is not a disqualification under
Article 191. To that extent we agree. Even apart from Article 191, if the
Constitution provides and clearly indicates that the breach of oath may give rise
to proceedings and actions for removing the alleged offender from the scene of
activity, the Court cannot hold that Article 191 alone provides for the disability
to continue as member of the Legislative Assembly. We hold that in the present
case, the question as to whether there was a breach of oaths of office and of
secrecy, is a matter to be decided under Article 164(1) for the purpose of the
‘pleasure doctrine’ applicable to the time in office of a Minister. The Minister
holds office only ‘at the disposal’ of the Chief Minister and/or Governor and his
office is held ‘durante bene placito’ of the Chief Minister and/or Governor.”
(iii) In Kallara Sukumaran v. Union of India (UoI) and ors., AIR 1986
Ker. 122, in Paragraphs 2 to 9 &, 11, 12, 13 & 16, relied on by the
learned Senior Government Pleader, on the facts and circumstances of the
case, this Court observed as follows:
“2. The 3rd Respondent was, and Respondents 4 to 6 are, Ministers in the State
of Kerala. They belong to the ‘Kerala Congress’, one of the constituents of the
‘ruling front’ which has formed the Ministry. Kerala Congress had a patty
convention at Ernakulam on the 25th of May 1985. These Respondents
participated and spoke in that meeting. The Appellants-Petitioners alleged that
the 3rd Respondent in his speech, aggressively exhorted for a ‘Punjab model’
agitation, directed against the Central Government. According to them, that
speech was the result of an ‘anti-centre’ conspiracy hatched by many including
Respondents 4 to 6. Respondents 4 to 6 even encouraged the 3rd Respondent in
his speech, and had stood by him even subsequent to his resignation from the
Ministry. The speech undermines the sovereignty and integrity of the Indian
Union. It therefore subverts the Constitution as by law established. In so acting,
they have violated the oath taken, by them under Article 164(3) as Ministers
before the assumption of office. They have also violated the oath as Members of
the Legislative Assembly taken under Article 188 of the Constitution. Such a
wanton violation of the constitutional oath entails a forfeiture of their position
both as Ministers and as Members of the Assembly. They are therefore usurpers
of office. A Writ of Quo Warranto is therefore sought seeking ouster of the
usurpers of office. The acts also constitute a serious offence of sedition
punishable under Section 124-A of the Indian Penal Code. No effective steps

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January 2021 B. Radhakrishna Menon v. State of Kerala 317
(DB) (Ker.) (S. Manikumar, C.J.)
have been taken either by the Union or by the State for prosecution for that
serious offence. A writ of mandamus is sought to compel the Central and State
Governments to perform their statutory duty to bring to book the offenders
involved in such a serious crime.
5. The Writ of Quo Warranto is one on information afforded in a Judicial
Enquiry into the question whether the holder of a Public office occupies that
office without Legal Authority. The Court is enabled by such a writ to control
executive action in the matter, of making appointments to Public offices against
the relevant statutory provisions. See University of Mysore v. Govinda Rao, AIR
1965 SC 491. It is also available to have the holding of an office declared
forfeited, “if, having once been rightfully possessed and enjoyed, it has become
forfeited for misuser or nonuser.” (See “Extraordinary Legal Remedies” by
Ferris, Page 125).
6. Under Article 164 of the Constitution, the Chief Minister is to be appointed by
the Governor and Ministers other than the Chief Minister are to be appointed by
the Governor on the advice by the Chief Minister. It is not disputed that
Respondents 4 to 6 became Ministers in accordance with this constitutional
provision. The contention is that they became subsequently disqualified for the
reasons alluded to above. The correctness of the contention has to be evaluated
by a reference to the constitutional scheme in that behalf.
7. A pivotal role is played by the high functionary of the State, the Governor.
Article 164(1) is explicit that the Ministers shall hold office during the pleasure
of the Governor. Consistent with the constitutional provisions and democratic
conventions, it is open to the Governor to withhold his pleasure and dismiss the
Ministry or any member of the Council of Ministers.
8. It is conceivable that situations may arise where a person enters office as a
Minister lawfully and properly, but forfeits the right to continue so by the
operation of the disqualifying provisions of the Constitution. Thus, for example,
a person can become a Minister even if he is not the member of the Legislature
of the State. But he can function so -- as one not duly elected -- only for a period
of six months. At the expiration of that period, he would cease to be a Minister,
if, by that time, he is not a member of the Legislature. That is the effect of
Article 164(4) of the Constitution.
9. There may also arise situations where a member of the Assembly becomes
subsequently disqualified in any one of the modes made mention of in Article
191. That, in turn, has a direct impact on such a person continuing as a Minister,
as a result of the conjoint operation of Articles 164(4) & 191. It is to be noted
that under Article 191, the disqualification not only extinguishes the existing
membership but also operates as a bar for further or future choice of the person
as a member of the Assembly. Such a situation has not arisen in the present case:
for, the eventualities in which a disqualification attaches itself for being a
member of the Assembly are:
(1) the holding of any office of profit as referred to in Clause (a),
(2) the declaration by a competent Court of the person being of unsound mind,
(3) undischarged insolvency,

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(4) ceasing to be a citizen of India, voluntarily acquiring the citizenship of a

foreign State, or being under acknowledgment of allegiance or adherence to a
foreign State, and
(5) the disqualification which may be provided by any law made by Parliament
in that behalf under Clause (a). It is agreed that the only law so made by the
Parliament as visualised in Clause (e) is the Representation of the People Act,
1951. The corrupt practices and other grounds of disqualification are referred
to in Sections 8, 8-A, 9, 9-A & 11-A of that Act. The Constitution itself
nominates the authority competent to decide about the disqualification referred
to in Article 191. That authority is the Governor. The modality of his action is
also regulated by the constitutional provision. Before giving any decision on
disqualification, the Governor shall obtain and act according to the opinion of
the Election Commission, (vide Article 192). The provisions referred to
forcefully suggest that the Constitution exhaustively deals with and provides
for the heads of disqualification. They are such of those expressly referred to in
the Constitution itself and those to be notified by law in that behalf. When the
constitutional scheme thus indicates the existence of an exhaustive scheme
regarding the heads of disqualification, it is not ordinarily for this Court to
expand the scope of disqualification or increase the heads of disqualification.
What was observed by the Supreme Court of Maryland, though in a different
context, affords a guidance in the present situation. The Supreme Court held
that “where the Constitution defined the qualifications of an officer, it was not
in the power of the legislature to change or super-add to them, unless the power
to do so was expressly or by necessary implication conferred by the
Constitution itself.” (See “A Treatise on the Constitutional Limitations” by
Thomas M Cooley, 1972, page 64). Here is a similar case. The Constitution
defined the disqualifications of a member of the Assembly. It is not in. the
power of the Court to change or super add to them, there being no power either
expressly conferred or inferable by necessary implication by the Constitution.
11. The argument is fraught with other anomalous consequences. In the case of a
minister for a State, the oath relates to the following matters:
(1) bearing true faith and allegiance to the Constitution,
(2) upholding the sovereignty and integrity of India,
(3) faithful and conscientious discharge of duties as a Minister, and
(4) doing right to all manner of people in accordance with the Constitution and
the law, without fear or favour, affection or ill-will. In the case of a member of
the Assembly, many matters which are special and peculiar to a Minister who
wields power, are absent. However, bearing true faith and allegiance to the
Constitution and upholding the sovereignty and integrity of India are the high-
lights of that oath too. The form and content of the oaths would certainly
demonstrate the solemnity and seriousness of the matters covered thereby.
They are not to be looked upon or treated in a casual or light hearted manner.
The question, however, is whether being unfaithful to the oaths or any portion
thereof, would operate as a disqualification as a member of the Assembly or as
a member of the Council of Ministers. A divagation from the oath can happen
in respect of many a matter referred to therein. Take for example the case
where it is established that a Minister omits to faithfully or conscientiously

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January 2021 B. Radhakrishna Menon v. State of Kerala 319
(DB) (Ker.) (S. Manikumar, C.J.)
discharge his duties as a Minister; or again, his acting under fear of an extra-
constitutional authority, or out of motive to favour a partisan. Take even the
case where actions arise out of affection, or are the projections of a pronounced
ill-will. Will anyone of these violations of oath spell in the realm of a
disqualification as Minister ? We are of the view that it will not. A
malfunctioning of a Minister or by a member of Assembly would be primarily
a matter for assessment and Judgment at the political level. That assessment
and that Judgment would have to be made by the party to which the erring
members belong or by the people to whom he has, under our constitutional
scheme, an established accountability. May be, in situations warranting drastic
action, the constitutional functionaries such as the Chief Minister or the
Governor, could intervene in the matter and bring about a corrective to the
situation. Even if the Chief Minister of the State or the Governor fail in that
behalf, the Constitution still has the safety valve of a Presidential action under
Article 356 of the Constitution, whereunder, the President is enabled to act on
receipt of a report from the Governor or otherwise on his satisfaction that there
is a break-down of the constitutional machinery in the State.
12. The morality or propriety of an undesirable person continuing as a Minister
is essentially a political question to be eminently dealt with and at any rate
initially, at the political level, such as by the Chief Minister, by the Legislature,
and ‘the general public holding a watching brief over them’, and later by the
constitutional functionaries as provided in the Constitution itself. Such was the
reaction of Dr. Ambedkar when he referred to this topic. (Constituent Assembly
Debates Vol. VII, page 1160). If that be so, that is an area where the High
Court’s jurisdiction under Article 226 is hardly attracted. This view has the
support of the decision of the Delhi High Court in Inder Mohan v. Union of
India, AIR 1980 Del. 20. Whether Sri. Bahuguna could with propriety continue
as a Minister of the Union Government was not a matter for the Court to decide -
- it was held. The idea is cogently and forcefully expressed by Frankfurter J. in
Charles W. Baker v. Joe C. Carr, 1962 (369) US 186 : 7 Led 2 663:
.....there is not under our constitution a judicial remedy for every political
mischief..... In this situation, as in others of like natures, Appeal for relief does
not belong here. Appeal must be to an informed, civically militant electorate. In
a democratic society like ours, relief must come through an aroused popular
conscience that sears the conscience of the people’s representatives.
13. In this connection, the following passage dealing with disqualification of
Members of House of Commons (as contained in De Smith’s Judicial Review of
Administrative Action”, 4 th Edn. page 465) appears to be apposite:
The question of qualification to sit as a member of either House of Parliament
falls within the scope of parliamentary privilege and is not, therefore,
cognisable by Courts of law except in so far as Parliament has expressly
provided for a judicial determination. The relevant statutory provisions do not
empower the Courts to award injunctions to restrain persons from sitting as
members.
16. We shall now consider the prayer for the issue of a Writ of Mandamus. We
are not satisfied that the learned Judge was right in declining the relief on the
technical ground of the prayer not being preceded by a prior demand. It is well

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known that the trammels of the English Courts in relation to the ancient writs do
not fetter the jurisdiction of the High Court under Article 226 of the Constitution.
Circumstances justifying, this Court could issue a writ or a direction, under that
extraordinary and extensive power. The question, however, is whether a case has
been made out at this stage, for the exercise of such a power.”
(iv) In Manohar Lal Sharma v. Sanjay Leela Bhansali and ors., 2018
(1) SCC 770, the Hon’ble Supreme Court while dealing with a PIL
relating to a film titled as “Padmavati” that it should not be exhibited in
other countries without obtaining the requisite certificate from the Central
Board of Film Certification (CBFC) under the Cinematograph Act, 1952
(for brevity, ‘the Act’), observed thus;
“2. It needs to be stated at the outset that the reliefs sought are not only
extremely ambitious but also the nature of pleadings in the Petition have the
effect of potentiality that can erode the fundamental conception of pleadings in a
Court of Law. It needs to be stated that neither laxity nor lack of sobriety in
pleadings is countenanced in law. The assertions in a Petition cannot show
carelessness throwing all sense of propriety to the winds. Rambling of irrelevant
facts only indicates uncontrolled and imprecise thinking and exposes the
inability of the Counsel. On certain occasions, it reflects a maladroit design to
state certain things which are meant to sensationalize the matter which has the
roots in keen appetite for publicity. When these aspects are portrayed in a
nonchalant manner in a petition, it is the duty of the Court to take strong
exception to the same and deal it with iron hands.
8. At this stage, we are obligated to state that Writ Petitions are being filed even
before the CBFC, which is the statutory authority, takes a decision. This is a
most unfortunate situation showing how Public interest litigation can be abused.
The hunger for publicity or some other hidden motive should not propel one to
file such Petitions. They sully the Temple of justice and intend to create dents in
justice dispensation system. That apart, a petition is not to be filed to abuse
others. The pleadings, as we have stated earlier, are absolutely scurrilous,
vexatious and untenable in law, and we, accordingly, strike them off the record.”
(v) As stated above, placing reliance on the decision in Alappey Asharaf
v. Chief Minister, Govt. Secretariat, Thiruvananthapuram and ors.,
2017 (5) KHC 875, learned Senior Government Pleader contended that a
breach of oath is not a ground for issuance of a Writ of Quo Warranto,
and similar to Alappey Asharaf’s case, the Petitioner has not approached
the commission duly supported by valid materials, to take action on the
alleged unfair practice and, therefore, his Complaint does not require any
action. Short facts leading to the decision are as follows:
“In this Writ Petition filed in Public interest, the Petitioner invokes the extra
ordinary jurisdiction of this Court under Article 226 of the Constitution of India
against Respondents 3 to 6 stating that they are the Ministers in the State
Cabinet, who have taken oath in terms of the Third Schedule to the Constitution
of India. According to the Petitioner, the Chief Minister had convened a Cabinet
meeting at 8 a.m. on 15.11.2017, and the Cabinet had taken several important

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January 2021 B. Radhakrishna Menon v. State of Kerala 321
(DB) (Ker.) (S. Manikumar, C.J.)
policy decisions, it is alleged that the aforesaid Respondents abstained/boycotted
from the Cabinet due to political reasons. It is alleged that the Third Respondent
had also handed over a letter to the Chief Minister stating that their party had
decided to abstain from the meeting of the Cabinet. Exhibit P1, a news report
that appeared in the Hindu daily, dated 16.11.2017 is produced in support of the
aforesaid averments. The Petitioner states that the aforesaid alleged act of
abstinence/boycotting amounts to breach of oath of office taken by Respondents
3 to 6, entitling him to seek the reliefs from this Court.”
At Para 4 of the Judgment, a Hon’ble Bench of this Court held thus:
“4. Insofar as this basic question is concerned, the issue is no longer res integra
and is entirely covered by the Full Bench Judgment of this Court in K.C. Chandy
v. R. Balakrishna Pillai, AIR 1986 Ker. 116 : 1985 KHC 170. In the Full Bench
Judgment, the two questions that were considered by this Court were whether the
breach of oath committed by a Minister would be a constitutional impediment
for his continuance in his office and whether in such circumstances a Writ of
Quo Warranto or an information in the nature of quo warranto could be issued
from this Court. These questions were considered by this Court and answered
thus:
“2. The main questions that fall for decision in this Writ Petition are:
(1) whether breach of oath committed by a Minister would be a constitutional
impediment for his continuance in office; and
(2) whether, in such circumstances, a Writ of Quo Warranto or an
information in the nature of quo warranto would be issued from this Court.
3. Article 164(3) of the Constitution lays down:
“Before a Minister enters upon his office, the Governor shall administer to
him the oaths of office and of secrecy according to the Forms set out for the
purpose in the Third Schedule.”
Article 191 of the Constitution prescribes disqualification for membership in the
Legislative Assembly of the States and Article 192 details the procedure for
deciding the disputes in respect of those disqualifications. The power of the
Governor under Article 192 is thus attracted only in those cases where Article
191 could be applied. Articles 191 & 192, therefore, constitute a composite
machinery for the purpose of disqualifying a member of the Legislature under
the Constitution.
4. So far as a member of the Legislative Assembly or Legislative Council is
concerned, penalty for sitting and voting before making oath of affirmation
under Article 188, is provided in Article 193 of the Constitution, which lays
down, inter alia, that such a person shall be liable in respect of each day on
which he so sits or votes, to a penalty of five hundred rupees to be recovered as a
debt due to the State. The Constitution, however, is silent as to the penalty to
which a Minister would be liable if he enters upon office without taking oath. So
also, there appears to be no express provision in the Constitution which attaches
specifically any disqualification to the Minister who commits breach of his oath.

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322 LABOUR LAW NOTES 2021 (1) LLN

5. In fact, as far as we could see, breach of oath of office is not a disqualification

specified in the Constitution or under any law made by Parliament. Even then, it
could not be assumed that there is no sanctity to the oath taken before
assumption of office or that there is no authority to take action if there is a
violation of that oath. Article 164(3) insists that no Minister could enter upon his
office unless the Governor administers to him the oaths of office and of secrecy.
The constitutional requirement of an oath before assumption of office could not
thus be created merely as ‘an additional moral obligation’ (as stated by
Willoughby in Vol. III, II Edn. of ‘The Constitutional Law of the United States’)
without any legal consequences whatsoever. The oath of office insisted upon
under the Constitution is the prescription of a fundamental code of conduct in the
discharge of the duties of these high offices. The oath binds the person
throughout his tenure in that office, and he extricates himself from the bonds of
the oath only when he frees himself from the office he holds. Breach of this
fundamental conduct of good behaviour may result in the deprivation of the very
office he holds. When posts are held, not at the pleasure of the President or the
Governor, but during ‘good behaviour’, breach of the oaths of office and of
secrecy may attract the impeachment clauses and when posts are held at the
pleasure of the President or the Governor, the termination, at their will, of the
tenure may be the possible outcome of such breach.
6. Oath of office is not an empty formality with no constitutional significance. In
the debates in the Constituent Assembly on Article 56, Dr. Ambedkar is reported
to have said that the phrase “violation of the Constitution” is a large one and may
well include treason, bribery or other high crimes and misdemeanours, because
treason is certainly violation of the Constitution and bribery will be violation of
the Constitution because it will be a violation of the oath by the President. In the
Judges’ transfer case, S.P. Gupta and others. v. President of India and others,
AIR 1982 SC 149, Pathak, J., observed thus:
“When a Judge permits his Judgments in a case to be influenced by the
irrelevant considerations of caste and creed, of relationship or friendship, of
hostility or enmity, he commits a breach of his oath.
It is a case where justice is not done and is denied. It is a case of misbehaviour,
to which the provisions of Article 218 read with Clauses (4) & (5) of Article
124 are attracted.”
7. Breach of oath may thus be a betrayal of faith. The Appointing Authority, the
Governor, in such cases, can consider whether there was, in fact, any breach of
oath. It is not for this Court to embark on any such enquiry.
8. Breach of oath is different from absence of oath. Absence of oath prevents
entry into office while breach affects the continuance after a valid entry. If no
oath is taken before assumption of office as enjoined by the Constitution, there is
no legal title to hold that office and a Writ of Quo Warranto will naturally go
from this Court. Similarly, a Minister, who, for any period of six consecutive
months, is not a member of the Legislature of the State shall, at the expiration of
that period, cease to be a Minister. This is the mandate of Article 164(3) of the
Constitution. A person without authority cannot function; and the jurisdiction
under Article 226 could be invoked to prevent that usurper in office from
functioning.

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January 2021 B. Radhakrishna Menon v. State of Kerala 323
(DB) (Ker.) (S. Manikumar, C.J.)
9. Breach of oath requires a termination of the tenure of office. This power can
be exercised by the Appointing Authority under the Constitution, and according
to the procedure, if any, prescribed therein. The termination of that tenure is not
the function of a Court; and it would not be appropriate to exercise jurisdiction
under Article 226 in such cases. Proceedings under Article 226 in such cases do
not lie. It was Jefferson who said:
“Our peculiar security is in the possession of a written Constitution; let us not
make it a blank paper by construction” (Government by Judiciary: Raoul
Berger p.304).
10. The question as to whether there was breach of oaths of office and of secrecy
committed by a Minister is outside Judicial Review under Article 226 of the
Constitution. It is to be decided in other appropriate forums; and in the case of
the Minister in a State, it falls within the discretionary domain of the Chief
Minister, and/or the Governor. Breach of oath prescribed by the Constitution
may, in certain circumstances, attract the penal provisions under the Indian Penal
Code. When the Criminal Law is set in motion, it is of course for the Criminal
Court to decide whether an offence has been committed or not. That is an
independent remedy which does not affect the Constitutional power, of
withdrawing the pleasure to continue in office, ingrained in Article 164(1). As
Raoul Berger refers in ‘Government by Judiciary’ at page 293: ‘Judiciary was
designed to Police constitutional boundaries, not to exercise supra constitutional
Police making decisions’ (Hamilton).
11. Sir Ivor Jennings in his book ‘Cabinet Government’ states thus:
“A Prime Minister has an undoubted right to request any of his colleagues
whose presence in his Cabinet, is, in his opinion or Judgment, prejudicial to the
efficiency or policy of the Government, to resign his office.
There is a tradition--a kind of public school function--that no Minister desires
office but that he is prepared to carry on for the public good. The tradition
implies a duty to resign where a hint is given.
The pardon of the perpetrator of a political crime, such as political
assassination, treason, riot, unlawful assembly and seditious libel might involve
political questions of the first order of magnitude.”
Said Sir Patrick Hastings:
“When the Public interest may conflict with the strict exercise of his duty, it is
not only the right but the duty of the Attorney-General to consult the Cabinet.
Every law officer who is undertaking a prosecution in the interest of the State
must possess himself not only guidance of technical law; said the Prime
Minister, “but must possess himself of guidance on the question, whether, if a
prosecution is initiated, the effect of the prosecution will be harmful or
beneficial to the State in whose interests it has been taken.” (Cabinet
Government : Sir Ivor Jennings (1951) P. 218).
S.A. De Smith speaks of the Prime Minister as “Primus inter pares” first among
equals and states thus:
“The authority of a Prime Minister will depend necessarily on such variables as
the confidence and popularity he commands as a leader, his intellectual grasp

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324 LABOUR LAW NOTES 2021 (1) LLN

of the problems of Government, his tactical acumen, his performances as an

orator and on the floor of the house, his ability to make quick and acceptable
decisions and to carry his senior colleagues and his party with him, the stature
of those colleagues, the state of the country’s economy, sheer luck and the
often fickle mood of public opinion.” (S.A. De Smith 2nd Edn. page 163).
In 1887, Gladstone wrote to the Queen thus:
“I have no general jurisdiction over the speeches of my colleagues and no right
to prescribe their tone and colour. When they offend against an assurance
which, with their authority, I have given to the Queen, they then afford me a
title to interfere upon which I have been, I hope, not unduly slow to act.”
To this, the Queen replied:
“The Queen thinks and maintains that the Prime Minister has and ought to have
that power, and that former Prime Ministers did exercise it.”
Mr. Gladstone’s answer was:
“Your Majesty is well aware that there is no code on record from which he
(Mr. Gladstone) may learn the powers of his office in such matters; and he has
formed his estimate simply according to such knowledge as he had gathered
under the heads of the Cabinets in which he has served. As he would be very
sorry to exaggerate the rights appertaining to his office, so he should deem it a
serious offence knowingly to allow any of them to fall into abeyance. He does
not doubt that there are many cases in which the Prime Minister can interfere,
both as to acts and language; for instance cases which affect duty to the crown
or cases where a Minister undertakes to commit his colleagues” (Cabinet
Government : Sir Ivor Jennings).”
12. The next question that would naturally arise would be whether a Writ of Quo
Warranto would be issued if a Minister is found to have committed breach of
oath. For our limited purpose it might not be necessary to trace the historical
background of the Writ of Quo Warranto. Suffice it to examine whether a Writ
of Quo Warranto can issue in respect of an appointment held at the pleasure of
the appointing Authority. In one of the earliest case, Darley v. The Queen (12 Cl.
& F. 537), Tindal, C.J., expressed thus:
“This proceeding by information in the nature of quo warranto will lie for
usurping an office, whether created by charter alone, or by the crown, with the
consent of Parliament, provided the office be of a public nature and a
substantive office, not merely the function or employment of a deputy or
servant held at the will and pleasure of others, for with respect to such an
employment, the Court certainly will not interfere and the information will not
properly lie.”
And proceeded to hold in that case thus:
“The functions of the treasurer were clearly of a public nature......... and it is
equally clear that though appointed by the Magistrate, he is not removable at
their pleasure, and not, we think, be treated not as their servant, but as an
independent officer.”

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January 2021 B. Radhakrishna Menon v. State of Kerala 325
(DB) (Ker.) (S. Manikumar, C.J.)
13. This statement of the law was approved in the leading case, R. v. Speyar,
1916 (1) KB 595, and it has been cited in all the important cases relating to quo
warranto jurisdiction. A Writ of Quo Warranto or a writ by way of information
in the nature of quo warranto cannot issue in these cases when a post is held ‘at
pleasure’. This is the normal rule. Even in those cases, however, the non-
fulfilment of the conditions prescribed for assumption of office or the absence of
the required qualification to hold that office affecting the title to that office will
give rise to the issuance of this writ. Once the office is held under a valid title,
and the continuance depends on the pleasure doctrine, the Writ of Quo Warranto
does not run; and no such writ, which can be defeated immediately by the mere
exercise of an executive will, will therefore issue.
14. It would be appropriate at this stage to advert to the ruling of the Division
Bench of this Court in Sukumaran v. Union of India, 1985 KLT 567. The
Division Bench ruling cannot be understood to lay down a proposition that
breach of oath will not entail a termination of the tenure in office. The decision
only held that breach of oath is not a disqualification under Article 191. To that
extent we agree. Even apart from Article 191, if the Constitution provides and
clearly indicates that the breach of oath may give rise to proceedings and actions
for removing the alleged offender from the scene of activity, the Court cannot
hold that Article 191 alone provides for the disability to continue as member of
the Legislative Assembly. We hold that in the present case, the question as to
whether there was a breach of oaths of office and of secrecy, is a matter to be
decided under Article 164(1) for the purpose of the ‘pleasure doctrine’ applicable
to the tenure in office of a Minister. The Minister holds office only ‘at the
disposal’ of the Chief Minister and/or Governor and his office is held ‘durante
bene placito’ of the Chief Minister and/or Governor.
15. The Division Bench placed reliance on the doctrine of political question
enunciated in Baker v. Carr, 369 US 186. We notice that even in the country of
its birth, this doctrine has only little application, as observed in Powell v.
McCormack, 295 US 486. There is a lucid discussion of this subject in Seervai’s
Constitutional Law of India, III Edn. Vol. II at p. 2205. In the view we have
taken, it is not, however, necessary to go into the details of this aspect of the
matter. To compel the Court to decide a political question may be ‘to charge the
judiciary with duties beyond its equipments” as stated by Frankfurter J., in (341
U. S.494 at 551.).”
(vi) In Neelakandan C.R. v. Union of India and ors., 2016 (2) KHC 588,
relied on by the learned Senior Government Pleader, short facts leading
to the filing of a Writ of Quo Warranto are summarised as under:
“This Writ Petition filed as Public interest litigation prays for issue of Writ of
certiorari quashing Ext.P1 order, by which, the Central Government has
constituted State Level Environment Impact Assessment Authority (SEIAA),
Kerala and State level Expert Appraisal Committee (SEAC), Kerala. A Writ of
Quo Warranto has also been prayed for against Respondents 5 to 8. Counter-
Affidavits have been filed by Respondent Nos.2, 5 to 8. Statement has also been
filed by the Counsel appearing for the First Respondent. Brief facts necessary to
be noticed for deciding the Writ Petition are: In exercise of powers conferred by
sub-section (1) and Clause (v) of sub-section (2) of Section 3 of the Environment

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326 LABOUR LAW NOTES 2021 (1) LLN

(Protection) Act, 1986, a Notification has been issued by the Ministry of

Environment and Forests dated 14.9.2006 providing for obtaining environmental
clearance for construction of new projects or activities or the expansion or
modernization of existing projects or activities listed in the Schedule to the
Notification from the Central Government or as the case may be by the State
Level Environment Impact Assessment Authority. As per Clause (3) of the
Notification, the Central Government was required to constitute a State Level
Environment Impact Assessment Authority (hereinafter referred to as ‘SEIAA’)
comprising of three members, including a Chairman and a Member Secretary.
Clause (4) refers to constitution of State Level Expert Appraisal Committee
(hereinafter referred to as ‘SEAC’) by the Central Government.”
Adverting to the submissions, the Hon’ble Division Bench, at Paragraphs 9 &
10, held thus:
“9. Before, we proceed to examine the respective qualifications of Respondents
5 to 8, it is necessary to look into the scope and ambit of Judicial Review in a
Writ of Quo Warranto. The Constitution Bench of the Hon’ble Apex Court in
University of Mysore v. Govinda Rao, 1965 KHC 518 : AIR 1965 SC 491 :
1964 (4) SCR 575 : ILR 1963 Mys 949, had occasion to consider the scope of
Writ of Quo Warranto. In the above case Respondent Govinda Rao had filed a
Writ Petition in the High Court under Article 226 of the Constitution praying
for issue of a Writ of Quo Warranto calling one Niya Gowda (Respondent in
the Writ Petition) to show cause as to under what authority he was holding the
post of Research Reader in English in the Central College, Bangalore. High
Court held that appointment of Niya Gowda was invalid. Appeal was filed by
the University. The Constitution Bench examined the content and scope of
Writ of Quo Warranto and following was laid down in Paras 6 & 7:
“6. The Judgment of the High Court does not indicate that the attention of the
High Court was drawn to the technical nature of the Writ of Quo Warranto
which was claimed by the Respondent in the present proceedings, and the
conditions which had to be satisfied before a writ could issue in such
proceedings.
7. As Halsbury has observed:
“An information in the nature of a quo warranto took the place of the
obsolete Writ of Quo Warranto which lay against a person, who claimed or
usurped an office, franchise, or liberty, to enquire by what authority he
supported his claim, in order that the right to the office or franchise might
be determined.” Broadly stated, the quo warranto proceeding affords a
judicial enquiry in which any person holding an independent substantive
public office, or franchise, or liberty, is called upon to show by what right
he holds the said office, franchise or liberty; if the inquiry leads to the
finding that the holder of the office has no valid title to it, the issue of the
Writ of Quo Warranto ousts him from that office. In other words, the
procedure of quo warranto confers jurisdiction and authority on the
judiciary to control executive action in the matter of making appointments
to public offices against the relevant statutory provisions; it also protects a
citizen from being deprived of public office to which he may have a right. It
would thus be seen that if these proceedings are adopted subject to the

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January 2021 B. Radhakrishna Menon v. State of Kerala 327
(DB) (Ker.) (S. Manikumar, C.J.)
conditions recognised in that behalf, they tend to protect the public from
usurpers of Public office; in some cases, persons not entitled to Public
office may be allowed to occupy them and to continue to hold them as a
result of the connivance of the executive or with its active help, and in such
cases, if the jurisdiction of the Courts to issue Writ of Quo Warranto is
properly invoked, the usurper can be ousted and the person entitled to the
post allowed to occupy it. It is thus clear that before a citizen can claim a
Writ of Quo Warranto, he must satisfy the Court, inter alia, that the office
in question is a Public office and is held by usurper without legal authority,
and that necessarily leads to the enquiry as to whether the appointment of
the said alleged usurper has been made in accordance with law or not.”
In Centre For PIL v. Union of India, 2011 (4) SCC 1 , with regard to Writ of
Quo Warranto the following was laid down in Paragraph 51 which is to the
following effect:
“51. The procedure of quo warranto confers jurisdiction and authority on the
judiciary to control executive action in the matter of making appointments to
Public offices against the relevant statutory provisions. Before a citizen can
claim a Writ of Quo Warranto he must satisfy the Court inter alia that the
office in question is a Public office and it is held by a person without legal
authority and that leads to the inquiry as to whether the appointment of the said
person has been in accordance with law or not. A Writ of Quo Warranto is
issued to prevent a continued exercise of unlawful authority.”
Thus Writ of Quo Warranto is for a Judicial Enquiry in which a person holding
public office is called upon to show by what right he hold the said office. If the
enquiry reaches to the finding that the holder of the office has no valid title the
issue of Writ of Quo Warranto will oust him from that office. Court in the
proceedings can enquire as to whether appointment of defendant is made
contrary to the statutory provisions.
10. The Hon’ble Apex Court in Rajesh Awasthi v. Nand Lal Jaiswal, 2012 KHC
4631 : 2013 (1) SCC 501, has laid down the following in Paragraph 19:
“19. A Writ of Quo Warranto will lie when the appointment is made contrary
to the statutory provisions. This Court in Mor Modern Coop. Transport Coop.
Transport Society Ltd. v. Govt. of Haryana, 2002 (6) SCC 269 held that a Writ
of Quo Warranto can be issued when appointment is contrary to the statutory
provisions. In B. Srinivasa Reddy (supra), this Court has reiterated the legal
position that the jurisdiction of the High Court to issue a Writ of Quo Warranto
is limited to one which can only be issued if the appointment is contrary to the
statutory rules. The said position has been reiterated by this Court in Hari Bans
Lal (supra) wherein this Court has held that for the issuance of Writ of Quo
Warranto, the High Court has to satisfy that the appointment is contrary to the
statutory rules.”
The Judgment of the Hon’ble Apex Court in Renu and others v. District &
Sessions Judge, Tis Hazari and another, 2014 KHC 4089 : 2014 (1) KHC SN 24
: 2014 (2) KLT SN 56 : ILR 2014 (2) Ker. 803 : AIR 2014 SC 2175 : 2014 (14)
SCC 50, was also relied, wherein, the nature and ambit of Writ of Quo Warranto
was explained in Paragraph 15, which is to the following effect:

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328 LABOUR LAW NOTES 2021 (1) LLN

“15. Where any such appointments are made, they can be challenged in the
Court of law. The quo warranto proceeding affords a judicial remedy by which
any person, who holds an independent substantive Public Office or franchise or
liberty, is called upon to show by what right he holds the said office, franchise
or liberty, so that his title to it may be duly determined, and in case the finding
is that the holder of the office has no title, he would be ousted from that office
by Judicial Order. In other words, the procedure of quo warranto gives the
Judiciary a weapon to control the Executive from making appointment to
public office against law and to protect a citizen from being deprived of public
office to which he has a right. These proceedings also tend to protect the public
from usurpers of Public office who might be allowed to continue either with
the connivance of the Executive or by reason of its apathy. It will, thus, be seen
that before a person can effectively claim a Writ of Quo Warranto, he has to
satisfy the Court that the office in question is a public office and is held by a
usurper without legal authority, and that inevitably would lead to an enquiry as
to whether the appointment of the alleged usurper has been made in accordance
with law or not. For issuance of Writ of Quo Warranto, the Court has to satisfy
that the appointment is contrary to the statutory rules and the person holding
the post has no right to hold it. (Vide: The University of Mysore and another v.
C.D. Govinda Rao and another, 1965 KHC 518 : AIR 1965 SC 491 :1964 (4)
SCR 575 : ILR 1963 Mys 949; Shri Kumar Padma Prasad v. Union of India
and others, 1992 KHC 1021 : AIR 1992 SC 1213 : 1992 (2) SCC 428 : 1992
SCC (L&S) 561 : 1992 (20) ATC 239 : 1992 (1) LLN 951 : 1992 (2) SLR 210;
B.R. Kapur v. State of Tamil Nadu and another, 2001 KHC 937 : AIR 2001 SC
3435 : 2001 (3) KLT SN 100 : 2001 (7) SCC 231; Mor Modern Co-operative
Transport Society Ltd. v. Financial Commissioner and Secretary to Govt..
Haryana and another, 2002 KHC 1716 : AIR 2002 SC 2513 : 2002 (6) SCC
269; Arun Singh v. State of Bihar and others, 2006 KHC 1151 : AIR 2006 SC
1413 : JT 2006 (3) SC 389 : 2006 (9) SCC 375; Hari Bansh Lal v. Sahodar
Prasad Mahto and others, 2010 KHC 4620 : AIR 2010 SC 3515 : 2010 (9)
SCC 655; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
and others, 2013 KHC 4873 : 2014 (1) SCC 161 : 2013 (4) KHC SN 31 : 2013
(13) SCALE 477 : AIR 2014 SC 246.”
In view of the law as laid down above, the enquiry in the present Writ Petition
has to be confined as to whether Respondents 5 to 8 have fulfilled the statutory
qualification to be nominated as Chairman/Member of the SEIAA and SEAC. In
an event, if they do not fulfill the statutory qualification, they have no right to
continue to hold the posts, which is a Public office of great importance.
However, in an event, if Respondents 5 to 8 possessed necessary qualification as
provided in Appendix VI, it is not for this Court to enter into the issue as to
whether they were better Candidates or whether they ought to have been
appointed or not. We, thus, proceed to examine the challenge accordingly.
(vii) In K.D. Prathapan v. State of Kerala and ors., 2015 KHC 606, this
Court observed thus:
“34. Before we proceed to examine the above Judgments relied on by the learned
Counsel for the Petitioner, it is relevant to note the scope of a Writ of Quo
Warranto. In the present Writ Petition Petitioner has prayed for issue of Writ of
Quo Warranto calling upon Respondent No.4, to show cause before this Court

Labour Law Notes / January-2021

January 2021 B. Radhakrishna Menon v. State of Kerala 329
(DB) (Ker.) (S. Manikumar, C.J.)
under what authority he is holding the office of Vice-Chancellor. Further to
quash Ext.P8 by which the State Government has restored Respondent No.4 in
the post of Vice-Chancellor in obedience of the Judgment of the Division Bench,
dated 30.7.2012 in W.A. No.347 of 2012. The Constitution Bench of the Apex
Court in University of Mysore v. Govinda Rao, AIR 1965 SC 491, had occasion
to consider the scope of Writ of Quo Warranto. In the above case Respondent
Govinda Rao had filed a Writ Petition in the High Court under Article 226 of the
Constitution praying for issue of a Writ of Quo Warranto calling one Niya
Gowda (Respondent in the Writ Petition) to show cause as to under what
authority he was holding the post of Research Reader in English in the Central
College, Bangalore. High Court held that appointment of Niya Gowda was
invalid. Appeal was filed by the University. The Constitution Bench examined
the content and scope of Writ of Quo Warranto and following was laid down in
Paragraph 6 & 7:
“6. The Judgment of the High Court does not indicate that the attention of the
High Court was drawn to the technical nature of the Writ of Quo Warranto
which was claimed by the Respondent in the present proceedings, and the
conditions which had to be satisfied before a writ could issue in such
proceedings.
7. As Halsbury has observed:
“An information in the nature of a quo warranto took the place of the
obsolete Writ of Quo Warranto which lay against a person, who claimed or
usurped an office, franchise, or liberty, to enquire by what authority he
supported his claim, in order that the right to the office or franchise might be
determined.”
Broadly stated, the quo warranto proceeding affords a judicial enquiry in
which any person holding an independent substantive Public office, or
franchise, or liberty, is called upon to show by what right he holds the said
office, franchise or liberty; if the inquiry leads to the finding that the holder of
the office has no valid title to it, the issue of the Writ of Quo Warranto ousts
him from that office. In other words, the procedure of quo warranto confers
jurisdiction and authority on the judiciary to control executive action in the
matter of making appointments to public offices against the relevant statutory
provisions; it also protects a citizen from being deprived of public office to
which he may have a right. It would thus, be seen that if these proceedings are
adopted subject to the conditions recognised in that behalf, they tend to protect
the public from usurpers of public office; in some cases, persons not entitled to
public office may be allowed to occupy them and to continue to hold them as a
result of the connivance of the executive or with its active help, and in such
cases, if the jurisdiction of the Courts to issue Writ of Quo Warranto is
properly invoked, the usurper can be ousted and the person entitled to the post
allowed to occupy it. It is thus clear that before a citizen can claim a Writ of
Quo Warranto, he must satisfy the Court, inter alia, that the office in question
is a Public office and is held by usurper without legal authority, and that
necessarily leads to the enquiry as to whether the appointment of the said
alleged usurper has been made in accordance with law or not.”

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330 LABOUR LAW NOTES 2021 (1) LLN

35. In Centre For PIL and another (supra), with regard to Writ of Quo Warranto
the following was laid down in Paragraph 51 which is to the following effect:
“51. The procedure of quo warranto confers jurisdiction and authority on the
judiciary to control executive action in the matter of making appointments to
Public offices against the relevant statutory provisions. Before a citizen can
claim a Writ of Quo Warranto he must satisfy the Court inter alia that the
office in question is a Public office and it is held by a person without legal
authority and that leads to the inquiry as to whether the appointment of the said
person has been in accordance with law or not. A Writ of Quo Warranto is
issued to prevent a continued exercise of unlawful authority.”
Thus Writ of Quo Warranto is for a Judicial Enquiry in which a person holding
Public office is called upon to show by what right he hold the said office. If the
enquiry reaches to the finding that the holder of the office has no valid title the
issue of Writ of Quo Warranto will oust him from that office. Court in the
proceedings can enquire as to whether appointment of Defendant is made
contrary to the statutory provisions.
36. The Hon’ble Apex Court in Rajesh Awasthi (supra) has laid down the
following in paragraph 19:
“19. A Writ of Quo Warranto will lie when the appointment is made contrary
to the statutory provisions. This Court in Mor Modern Coop. Transport Coop.
Transport Society Ltd. v. Govt. of Haryana, 2002 (6) SCC 269, held that a Writ
of Quo Warranto can be issued when appointment is contrary to the statutory
provisions. In B. Srinivasa Reddy (supra), this Court has reiterated the legal
position that the jurisdiction of the High Court to issue a Writ of Quo Warranto
is limited to one which can only be issued if the appointment is contrary to the
statutory rules. The said position has been reiterated by this Court in Hari Bans
Lal (supra) wherein this Court has held that for the issuance of Writ of Quo
Warranto, the High Court has to satisfy that the appointment is contrary to the
statutory rules.”
(viii) As regards Hari Banshi Lal v. Sahodar Prasad Mahto and ors.,
2010 (9) SCC 655 : 2010 KHC 4620, learned Senior Government Pleader
has referred to Paragraphs 13, 16 & 21, which are extracted hereunder:
“13. In B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage
Board Employees Assn. and ors., 2006 (11) SCC 731, this Court held:
“49. The law is well settled. The High Court in exercise of its writ jurisdiction
in a matter of this nature is required to determine, at the outset, as to whether a
case has been made out for issuance of a Writ of Quo Warranto. The
jurisdiction of the High Court to issue a Writ of Quo Warranto is a limited one
which can only be issued when the appointment is contrary to the statutory
rules. It is clear from the above decisions that even for issuance of Writ of Quo
Warranto, the High Court has to satisfy that the appointment is contrary to the
statutory rules. In the later part of our Judgment, we would discuss how the
Appellant herein was considered and appointed as Chairman and whether he
satisfied the relevant statutory provisions.
Suitability of a candidate for appointment:

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January 2021 B. Radhakrishna Menon v. State of Kerala 331
(DB) (Ker.) (S. Manikumar, C.J.)
16. In State Bank of India and ors. v. Mohd. Mynuddin, 1987 (4) SCC 486, after
adverting to earlier decision of this Court in State of Mysore and anr. v. Syed
Mahmood and ors., 1968 (3) SCR 363, this Court held:
...The ratio of the above decision is that where the State Government or a
Statutory Authority is under an obligation to promote an Employee to a higher
post which has to be filled up by selection the State Government or the
Statutory Authority alone should be directed to consider the question whether
the Employee is entitled to be so promoted and that the Court should not
ordinarily issue a Writ to the Government or the Statutory Authority to
promote an officer straightway. The principle enunciated in the above decision
is equally applicable to the case in hand.
It is clear from the above decisions, suitability or otherwise of a Candidate for
appointment to a post is the function of the Appointing Authority and not of the
Court unless the appointment is contrary to statutory provisions/rules.
21. From the discussion and analysis, the following principles emerge:
(a) Except for a Writ of Quo Warranto, PIL is not maintainable in service
matters.
(b) For issuance of Writ of Quo Warranto, the High Court has to satisfy that
the appointment is contrary to the statutory rules.
(c) Suitability or otherwise of a candidate for appointment to a post in
Government service is the function of the Appointing Authority and not of the
Court unless the appointment is contrary to statutory provisions/rules.
Curiously, but unfortunately, the State Government which had defended the
qualification, service and ultimate appointment of Mr. Lal (Appellant herein) as
Chairman of the Board before the High Court, changed their stand before this
Court for the reasons best known to them and supported the order of the High
Court.”
(ix) In Raju Puzhankara v. Kodiyeri Balakrishnan and ors., 2009 KHC
244, a Hon’ble Division Bench of this Court, at Paras 5 to 10, considered
and held thus:
“5. The next question is whether a Minister is holding a Public office, so that a
quo warranto writ can be issued, if he is functioning as a Minister without any
legal authority. Another incidental question is, even if his initial assumption is
valid in law, whether if he subsequently disqualify to hold office, can a Writ of
Quo Warranto be issued. There is no dispute that if a Minister is holding his
office against law, a quo warranto writ can be issued. In S.R. Chowdhury v. State
of Punjab and ors. AIR 2001 SC 2707, quo warranto writ was issued by the
Supreme Court. In that case, a person, who was not a member of the legislative
assembly was appointed as Chief Minister. The Hon’ble Supreme Court held that
even though under Article 164(4) of the Constitution of India, he can be
appointed for an initial period of six months, he cannot be repeatedly continued
to hold the office beyond the period of six months and, therefore, after the first
six months, he cannot be appointed again and in that particular case quo
warranto writ was issued. The Court also noticed that if he is repeatedly
appointed to the above post, it will be flouting the constitutional scheme and

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332 LABOUR LAW NOTES 2021 (1) LLN

mandate. In B.R. Kapur v. State of Tamil Nadu and anr., AIR 2001 SC 3435, the
Hon’ble Supreme Court also held that even if a person is disqualified to become
a member of the legislature, he cannot be appointed as a Minister or Chief
Minister under the guise of Article 164(4) and a quo warranto writ can be issued
to oust such person from office. In that case, Smt. Jayalalitha, who was convicted
and sentenced by a Court of law for imprisonment for more than two years,
without becoming a member of the Legislative Assembly occupied office of
Chief Minister of Tamil Nadu by virtue of Article 164(4) of the Constitution.
The Apex Court held that if she is not qualified to become a member of the
Legislative Assembly, she cannot be appointed as a Minister or a Chief Minister.
The Hon’ble Apex Court held as follows:
“50. ...The Constitution prevails over the will of the people as expressed
through the majority party. The will of the people as expressed through the
majority party prevails only if it is in accord with the Constitution. The
Governor is functionary under the Constitution and is sworn to ‘preserve,
protect and define the Constitution and the laws’ (Article 159). The Governor
cannot, in the exercise of his discretion or otherwise, do anything that is
contrary to the Constitution and the laws. It is anr. thing that by reason of the
protection the Governor enjoys under Article 361, the exercise of the
Governor’s discretion cannot be questioned. We are in no doubt at all that if
the Governor is asked by the majority party in the legislature to appoint as
Chief Minister a person, who is not qualified to be a member of the legislature
or who is disqualified to be a member of the legislature or who is disqualified
to be such, the Governor must having due regard to the Constitution and the
laws, to which he is subject, decline and the exercise of discretion by him in
this regard cannot be called in question.
51. If perchance, for whatever reason, the Governor does appoint as Chief
Minister a person, who is not qualified to be a member of the legislature or
who is disqualified to be such, the appointment is contrary to the provisions of
Article 164 of the Constitution, as we have interpreted it, and the authority of
the appointee to hold the appointment can be challenged in quo warranto
proceedings. That the Governor has made the appointment does not give the
appointee any higher right to hold the appointment. If the appointment is
contrary to the constitutional provisions it will be struck down. The submission
to be contrary-unsupported by any authority-must be rejected.
52. The Judgment of this Court in Shri Kumar Padma Prasad v. Union of
India, 1992 (2) SCC 428, is a case on point. One K.N. Srivastava was
appointed a Judge of the Gauhati High Court by a warrant of appointment
signed by the President of India. Before the oath of his office could be
administered to him, quo warranto proceedings were taken against him in that
High Court. An Interim Order was passed directing that the warrant of
appointment should not be given effect to until further orders. A Transfer
Petition was then filed in this Court and was allowed. This Court, on
examination of the record and the material that it allowed to be placed before
it, held that Srivastava was not qualified to be appointed a High Court Judge
and his appointment was quashed. This case goes to show that even when the
President, or the Governor, has appointed a person to a constitutional office,

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January 2021 B. Radhakrishna Menon v. State of Kerala 333
(DB) (Ker.) (S. Manikumar, C.J.)
the qualification of that person to hold that office can be examined in quo
warranto proceedings and the appointment can be quashed.”
6. As far as the present case is concerned, the First Respondent was elected as
the Member of the Legislative Assembly and he became the Home Minister after
complying with all legal formalities. There is no dispute with regard to his initial
appointment and there is no contention that he was disqualified under any of the
provisions of the enactments or the Constitution. The only contention is that he
has violated the oath of secrecy which was taken at the time of assumption of
office. The form of oath of office to be taken at the time of assumption of office
is as follows:
I.....swear in the name of God/solemn affirm that I will bear true faith and
allegiance to the Constitution of India as by law established, that I will uphold
the sovereignty and integrity of India, that I will faithfully and conscientiously
discharge my duties as a Minister for the (State of Kerala) and that I will do
right to all manner of people in accordance with the Constitution and the law
without fear or favour, affection or ill-will.
The oath of secrecy to be taken is as follows:
I.....swear in the name of God/solemnly affirm that I will not directly or
indirectly communicate or reveal to any person or persons any matter which
shall be brought under my consideration or shall become known to me as a
Minister for the (State of Kerala) except as may be required for the due
discharge of my duties as such Minister.
In this case, CBI prepared a final report after investigation. Two Government
officers and one ex-minister are arrayed as accused. C.B.I., has sought sanction
to prosecute them and the Minister. It is stated in Ext.P2 paper report that the
First Respondent has stated that cases are not new to Pinarayi and they will
fight the case politically. According to the Petitioner, by the above statement,
the Minister has divulged the information that Pinarayi, an ex-minister, is an
accused and thereby violated the oath. The violation of oath of office is a very
serious matter. But the questions are whether there is any violation, and even if
there is violation of oath, who is the authority to take action and whether Writ
of Quo Warranto will lie. When final report was filed levelling charges against
an ex-minister, a spontaneous reaction was made by the First Respondent.
Whether such expression by the Home Minister before consideration of the
issue by the Cabinet is improper is not a question to be considered by us.
Impropriety of a statement by the Minister is non-justiciable. Violation of oath
is different from impropriety. In any event, a Writ of Quo Warranto cannot be
issued on the ground of impropriety and, in any view, for the impropriety in the
conduct of a Minister Writ of Quo Warranto will be issued by the Court
sparingly in very special circumstances. It is a discretionary remedy. Even
though the CBI has filed charges against the ex-minister, unless he is found
guilty by the Court, he is deemed to be innocent. Prima facie, we are of the
opinion that the observations made by the Minister is not a violation of oath.
This is only a prima facie opinion, as we are not called upon to give a verdict
on that aspect in this proceedings.
7. Even assuming that there is violation of oath, a Full Bench of this Court in
K.C. Chandy v. R. Balakrishna Pillai, 1985 KLT 762 FB, held that quo warranto

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334 LABOUR LAW NOTES 2021 (1) LLN

cannot be issued in such situation. The Court held that breach of oath is different
from absence of oath and if there is breach of oath, action has to be exercised by
the Appointing Authority under the Constitution. Whether breach of oath of
office and of secrecy committed by a minister is outside the Judicial Review
under Article 226 of the Constitution of India. The Full Bench held as follows:
“7. Breach of oath may thus be a betrayal of faith. The Appointing Authority,
the Governor, in such cases, can consider whether there was, in fact, any
breach of oath. It is not for this Court to embark on any such enquiry.”
8. Breach of oath is different from absence of oath. Absence of oath prevents
entry into office while breach affects the continuance after a valid entry. If no
oath is taken before assumption of office as enjoined by the Constitution, there is
no legal title to hold that office and a Writ of Quo Warranto will naturally go
from this Court. Similarly, a Minister, who, for any period of six consecutive
months, is not a member of the Legislature of the State shall, at the expiration of
that period, cease to be a Minister. This is the mandate of Article 164 of the
Constitution. A person without authority cannot function; and the jurisdiction
under Article 226 could be invoked to prevent that usurper in office from
functioning.
9. Breach of oath requires a termination of the tenure of office. This power can
be exercised by the Appointing Authority under the Constitution and according
to the procedure, if any, prescribed therein. The termination of that tenure is not
the function of a Court; and it would not be appropriate to exercise jurisdiction
under Article 226 in such cases. Proceedings under Article 226 in such cases do
not lie. It was Jefferson who said:
“Our peculiar security is in the possession of a written Constitution; let us not
make it a blank paper by construction. (Government by Judiciary-Raoul Berger
- p.304.)
10. The question as to whether there was breach of oaths of office and of secrecy
committed by a Minister is outside Judicial Review under Article 226 of the
Constitution.”
(x) In Gurpal Singh v. State of Punjab and ors., 2005 (5) SCC 136,
relied on by the learned Senior Government Pleader, the Hon’ble
Supreme Court, on the aspect as to when a PIL should be entertained, at
Para 5, 6 & 7, 10, observed thus:
“5. Learned Counsel appearing for the Market Committee supported the stand of
the Appellant and submitted that there was nothing irregular in the appointment
of the Appellant and the same was in terms of the rules of appointment. Learned
Counsel for the Respondent No.4, Writ Petitioner however, submitted that
merely because the Writ Petition was filed after fourteen years and because there
was some personal differences that cannot dilute the Public interest element
involved in the Writ Petition. It was further submitted that notwithstanding the
clear direction of the High Court to start the process of selection afresh within
four months, nothing has been done and this amounts to contempt of Court.
6. The scope of entertaining a Petition styled as a Public interest litigation, locus
standi of the Petitioner particularly in matters involving service of an Employee

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January 2021 B. Radhakrishna Menon v. State of Kerala 335
(DB) (Ker.) (S. Manikumar, C.J.)
has been examined by this Court in various cases. The Court has to be satisfied
about (a) the credentials of the Applicant; (b) the prima facie correctness or
nature of information given by him; (c) the information being not vague and
indefinite. The information should show gravity and seriousness involved. Court
has to strike balance between two conflicting interests; (i) nobody should be
allowed to indulge in wild and reckless allegations besmirching the character of
others; and (ii) avoidance of public mischief and to avoid mischievous Petitions
seeking to assail, for oblique motives, justifiable executive actions. In such case,
however, the Court cannot afford to be liberal. It has to be extremely careful to
see that under the guise of redressing a public grievance, it does not encroach
upon the sphere reserved by the Constitution to the Executive and the
Legislature. The Court has to act ruthlessly while dealing with imposters and
busy bodies or meddlesome interlopers impersonating as public-spirited holy
men. They masquerade as crusaders of justice. They pretend to act in the name
of Pro Bono Publico, though they have no interest of the public or even of their
own to protect.
7. Courts must do justice by promotion of good faith, and prevent law from
crafty invasions. Courts must maintain the social balance by interfering where
necessary for the sake of justice and refuse to interfere where it is against the
social interest and public good. (See State of Maharashtra. v. Prabhu, 1995 (1)
LLJ 622 SC; and Andhra Pradesh State Financial Corporation v. GAR Re-
Rolling Mills and anr., 1994 (1) SCR 857. No litigant has a right to unlimited
draught on the Court time and public money in order to get his affairs settled in
the manner as he wishes. Easy access to justice should not be misused as a
licence to file misconceived and frivolous Petitions. (See Dr. B.K. Subbarao v.
K. Parasaran, JT 1996 7 265. Today people rush to Courts to file cases in
profusion under this attractive name of Public interest. They must inspire
confidence in Courts and among the public.
10. It is depressing to note that on account of such trumpery proceedings
initiated before the Courts, innumerable days are wasted, which time otherwise
could have been spent for the disposal of cases of the genuine litigants. Though
we spare no efforts in fostering and developing the laudable concept of PIL and
extending our long arm of sympathy to the poor, the ignorant, the oppressed and
the needy whose fundamental rights are infringed and violated and whose
grievance go unnoticed, unrepresented and unheard; yet we cannot avoid but
express our opinion that while genuine litigants with legitimate grievances
relating to Civil matters involving properties worth hundreds of millions of
rupees and substantial rights and Criminal cases in which persons sentenced to
death facing gallows under untold agony and persons sentenced to life
imprisonment and kept in incarceration for long years, persons suffering from
undue delay in service matters Government or private, persons awaiting the
disposal of tax cases wherein huge amounts of Public revenue or unauthorized
collection of tax amounts are locked up, detenu expecting their release from the
detention orders, etc. etc. are all standing in a long serpentine queue for years
with the fond hope of getting into the Courts and having their grievances
redressed, the busy bodies, meddlesome interlopers, wayfarers or officious
interveners having absolutely no real Public interest except for personal gain or
private profit either of themselves or as a proxy of others or for any other
extraneous motivation or for glare of publicity break the queue muffing their

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336 LABOUR LAW NOTES 2021 (1) LLN

faces by wearing the mask of Public interest litigation and get into the Courts by
filing vexatious and frivolous Petitions of luxury litigants who have nothing to
loose but trying to gain for nothing and thus criminally waste the valuable time
of the Courts and as a result of which the queue standing outside the doors of the
Court never moves, which piquant situation creates frustration in the minds of
the genuine litigants.”
42. Some of the decisions relied on by the learned Senior Government
Pleader have been taken note of by a Hon’ble Division Bench of the Madras
High Court. However, we deem it fit to extract the decisions considered by
the Hon’ble Madras High Court in S. Gunasekaran v. Ministry of Home
Affairs, W.P.(C) No.24464/2019, dated 21.8.2019].
(i) In J.A. Samaj v. D. Ram, AIR 1954 Pat. 297, election to the Working
Committee of the Bihar Rajya Arya Pratinidhi Sabha, was challenged by
a Writ of Quo Warranto, and the Hon’ble High Court of Patna, held thus:
“The remedy which Article 226 contemplates is a, public law remedy for the
protection and vindication, of a public right. It is essential in this connection to
remember that there is a distinction between jus privatum and jus publicum
which is the most fundamental distinction of corpus juris. This Roman
distinction has been carried into modern law and the scope of public law in this
context embraces all the rights, and duties, of which the State or some individual
holding delegated authority under it, is one part and the subject is the other part.
The language of the Article 226 supports the inference that the remedy is
provided only for the assertion of a public law right. Article 226 states that the
High Court shall have power to issue to any person or authority, including it
appropriate cases any Government, directions, orders or writs, including writs in
the nature of habeas corpus, man damns, prohibition, quo warranto and
certiorari. All these writs are known in English law as prerogative writs, the
reason being that they are specially associated with the King’s name. These writs
were always granted for the protection of Public interest and primarily by the
Court of the King’s Bench. As a matter of history the Court of the King’s Bench,
was held to be coram rege ipso and was required to perform quasi-governmental
functions. The theory of, the English law is that the King himself superintends
the due course of justice through his own Court--preventing cases of usurpation
of jurisdiction and insisting on vindication of public rights and personal freedom
of his subjects. That is the theory of the English law and our Constitution makers
have borrowed the conception of prerogative writs from the English law. The
interpretation of article 226 must therefore be considered in the background of
English law and so interpreted, it is obvious that the remedy provided under
Article 226 is a remedy for the vindication of a public right.”
(ii) In Mohammad Tafiuddin and ors. v. State of West Bengal and ors.,
1979 (2) CLJ 494, at Paragraph Nos.13 to 16, the Hon’ble High Court of
Calcutta, held thus:
“13. In terms of the determinations in the case of Hamid Hasan Nomani v.
Banwarilal Roy and others, AIR 1947 PC 90, an information in the nature of quo
warranto is the modern from of the obsolete Writ of Quo Warranto, which lay
against a peon, who claimed or usurped in office franchise or liberty, to enquire

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January 2021 B. Radhakrishna Menon v. State of Kerala 337
(DB) (Ker.) (S. Manikumar, C.J.)
by what authority he supported his claim, in order that the right to the office or
franchise might be determined. It has also been observed to be a remedy to try
the Civil right to a public office. In view of the determinations in the case of
University of Mysore v. Govinda Rao, AIR 1965 SC 491, the procedure of quo
warranto confers jurisdiction and authority on the judiciary to control executive
action in the matter of making appointments to Public offices against statutory,
provisions or statutes, it also protects a subject from being deprived or Public
office, to which he may have a right. As observed in the case of Statesman (P)
Ltd. v. H.R. Deb, AIR 1968 SC 1495, the High Court in a proceeding for quo
warranto should be also in its pronouncement unless there is a case of
infringement of law.
14. A Writ of Quo Warranto is not the same as a Writ of Certiorari, or
Prohibition or Mandamus and in a such a proceeding for quo warranto, it is not
necessary for the Applicant to establish that he has been prejudicially affected by
any wrongful act of public nature or that his fundamental right is infringed or
that he is denied any legal right or that any legal duty is owed to him. The scope
of a proceeding for quo warranto is very limited and it is only for the
determination, whether the appointment of the Respondent is by a proper
authority and in accordance with law, if there is some express statutory
provision. The High Court’s power of interference in a proceeding for quo
warranto is also limited and it cannot act as an appellate authority. Quo
warranto, in terms of the determination in the case of Bhaimlal Chunilal v. State
of Bombay, AIR 1954 Bom. 116 is a remedy given in law at the discretion of the
Court and is not a proceeding or a writ of course. The High Court can in a
proceeding for quo warranto, as observed in the case of Lalit Mohan Das v.
Biswanath Ghosh, AIR 1952 Cal. 868, issue an order not only prohibiting an
officer from acting in an office to which he is not entitled, but can also declare
the Office to be vacant. As observed in Hamid Hasans case (Supra) information
in the nature of quo warranto is in nature of a Civil proceedings and such writ
can be issued when a post created under or by a statute or a Public office, is
usurped wrongly, illegally or without any authority. The tests of Public office, as
observed in the case of Sashi Bhusan Ray v. Pramatha Nath Bandopadhaya 70
CWN 892, are whether to the duties of office are of public nature and whether it
is a substantive office under a statute. It has been held and observed in the case
of Amarendra Chandra Aich v. Narendra Kumar Basu, 56 CWN 449, that a Writ
of Quo Warranto will not be available in respect of an office of private nature.
15. Thus, in terms of the determinations an the case of University of Mysore v.
Govinda (supra) the first and foremost criteria for the issue of a Writ of Quo
Warranto should be that the office must be public and pursuant to the
determinations in the case of Shyabudinsab Mohidinsate Akki v. Gadaj Belgeri
Municipal Borough, AIR 1975 SC 314, a proceeding for quo warranto will not
be in respect of office ox a private charitable institution or of a private
association and the test of a Public office is whether the duties of the office are
public nature. On the basis of the determinations as mentioned above, it can also
be deduced that the office moist be substantive in character and must be, as
mentioned hereinbefore created by statute or by Constitution itself. So neither
the statutory nor constitutional character being satisfied in the instant case is so
far the offices of Respondent Nos.4 or 7 of 18(a), I am of the view that even

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338 LABOUR LAW NOTES 2021 (1) LLN

inspite of the determinations on merit, the Petitioners would not be entitled to the
issue of a Writ of Quo Warranto.”
(iii) In Arun Kumar v. Union of India (UoI) and ors., AIR 1982 Raj. 67,
at Paragraph Nos.4 to 6, the Hon’ble Rajasthan High Court, held thus:
“4. Article 226 of the Constitution empowers the High Court to issue to any
person or authority including the Government within its territorial jurisdiction,
directions, orders or writs in the nature of mandamus, certiorari prohibition or
quo-warranto for the enforcement of fundamental rights or for the enforcement
of the legal rights and for any other purpose.
5. The founding fathers of the Constitution have couched the Article in
comprehensive phraseology to enable the High Court to remedy injustice
wherever it is found, but it is equally true that a person invoking the
extraordinary jurisdiction of this Court should be an aggrieved person. If he does
not fulfill the character of an aggrieved person and is a ‘stranger’ the Court will,
in its discretion, deny him this extraordinary remedy save in very special and
exceptional circumstances. The Petitioner challenging the order must have some
specialised interest of his own to vindicate, apart from a political concern, which
belongs to all. Legal wrong requires a judicial and enforceable right and the
touchstone to the justiciability is injury to legally protected right. A nominal,
imaginary, a highly speculative adverse effect to a person cannot be said to be
sufficient to bring him within the expression of “aggrieved person”. The words
“aggrieved person” cannot be confined within the bounds of a rigid formula. Its
scope and meaning depends on diverse facts and circumstances of each case,
nature and extent of the Petitioner’s interest and the nature and extent of the
prejudice or injury suffered by him.
6. Any information in the nature of quo warranto would not be issued, and an
injunction in lieu thereof would not be granted as a matter of course. It is in the
discretion of the Court to refuse or grant it according to the facts and
circumstances of each case. The Court would inquire into the conduct and
motive of the Applicant and where there are grounds for supposing that the
relator was not the real prosecutor but was the instrument of other persons and
was applying in collusion with stranger, the Court may refuse to grant a Writ of
Quo Warranto.”
(iv) In S. Mahadevan v. S. Balasundaram and ors., 1986 (1) Mad LJ 31,
at Paragraph 21, the High Court of Madras held as follows:
“For the issuance of a Writ of Quo Warranto, the Court asks the question-where
is your warrant of appointment ? It enjoins an enquiry into the legality of the
claim which the party asserts to an office and if the appointment and holding on
to the office are illegal and violative of any binding rule of law, then the Court
shall oust him from his enjoying thereof. This Court, within the scope of the
enquiry for the issuance of a Writ of Quo Warranto, is not concerned with any
other factor except the well laid down factors which require advertance to and
adjudication. The existence of the following factors have come to be recognised
as conditions precedent for the issuance of a Writ of Quo Warranto:
(1) The Office must be public;

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January 2021 B. Radhakrishna Menon v. State of Kerala 339
(DB) (Ker.) (S. Manikumar, C.J.)
(2) The Office must be substantive in character, that is, an office independent
in title;
(3) the office must have been created by statute or by the Constitution itself;
(4) the holder of the office must have asserted his claim to the office; and
(5) the impugned appointment must be in clear infringement of a provision
having the force of law or in contravention of any binding rule of law. This
Court shall not frown upon an appointment to the office on the ground of
irregularity, arbitrariness or caprice or mala fides and these features, even if
they are present, could not clothe this Court with the power for the issuance of
a Writ of Quo Warranto. The scope of the enquiry is riveted to only the
aforesaid factors. Prerogative writs, like the one for quo warranto, could be
and should be issued only within the limits, which circumscribe their issuance.
It is not possible to wider their limits. A Writ of Quo Warranto is of a technical
nature. It is a question to an alleged usurper of an office to show the legal
authority for his appointment and holding on to it. If he shows his legal
authority, he cannot be ousted from the office. The invalidity of the
appointment may arise either for want of qualifications prescribed by law or
want of authority on the part of the person who made the appointment, or want
of satisfaction of the statutory provisions or conditions or procedure governing
the appointment and which are mandatory. This Court, under Article 226 of the
Constitution of India, can issue a Writ of Quo Warranto only if the salient
conditions delineated above stand satisfied and not otherwise.”
(v) In Devi Prasad Shukla and another v. State of Uttar Pradesh and
another, 1989 Lab IC 1086, at Paragraph No.34, the Hon’ble Allahabad
High Court, held thus:
“34. To illustrate the point, we may mention that in a Writ Petition even the
person called upon to show whether he possesses the necessary qualifications
prescribed for that office can also be asked whether the authority which he
produces is by the person who is authorised to make appointment to the Office
which he holds. By showing that he possesses the necessary qualifications by
demonstrating that there is no legal impediment in the way of his appointment to
the office and by showing that the person who issued the appointment or warrant
of his appointment is authorised by law to do so, no Writ of Quo Warranto will
be issued against him. If all these things are demonstrated by him in his favour,
he cannot be said to be a usurper.”
(vi) In Hardwari Lal v. Ch. Bhajan Lal and ors., AIR 1993 P & H 3, at
Paragraph No.16, the Hon’ble Punjab and Haryana High Court, held thus:
“15. As a necessary corollary of our aforesaid discussion it follows that this
Court is not competent to issue a Writ of Quo Warranto or any other kind of writ
or direction removing the Chief Minister for his having committed the breach of
oath. It is now well settled that when a post or office is held at pleasure no Writ
of Quo Warranto can issue. Once a person enters upon an office lawfully and is
legally entitled to hold it and the continuance depends upon the pleasure
doctrine, it will not be permissible to issue a writ by way of information in the
nature of quo warranto or a Writ of Quo Warranto. The reason is that such a writ

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can immediately and easily be defeated by the executive will as it shall be open
to it to allow such a person to assume that office against. The Full Bench of the
Kerala High Court in K.C. Chandy’s case (supra) quoted a passage from Darley
v. The Queen 12 Cl & F 520, as follows:
“This proceeding by information in the nature of quo warranto will lie for
usurping an office whether created by charter alone, or by the Crown, with the
consent of Parliament, provided the office be of a public nature, and a
substantive office, not merely the function or employment of a deputy or
servant held at the will and pleasure of others, for with respect to such an
employment, the Court certainly will not interfere and the information will not
properly lie.” Expressing the same view, the Full Bench of the Andhra Pradesh
High Court in D. Satyanarayana Ramachandran’s case (supra) held that the
Governor may have to tolerate the continuance in office of the Chief Minister
so long as he enjoys the confidence of the majority of the Members of the
Assembly unless, of course, he suffers any of the disqualifications to hold that
office. Since the power to terminate the tenure of the Minister vests in the
Governor, it will not be just for the Courts to assume limitless jurisdiction as
that may lead to a state of functional anarchy which has to be avoided in the
larger Public interest itself, A Chief Minister is accountable to the electorates
who hold a watching brief to prevent mis-performance and misrule by the
elected representatives. We may quote the Full Bench to say,—
“No gratuitous advice, much less any specific direction, from this Court is
necessary.” The Court then expressed the definite view in Paragraph 14 of
the Judgment that whatever be the merits of the allegations made, if and
when found appropriate, the power to terminate the tenure of office of the
Chief Minister being vested solely in the Governor under Article 164(1) of
the Constitution, no Writ of Quo Warranto would issue from the Court. We
have no reason to take a different view, nor could we be successfully
persuaded to differ.”
(vii) In Waseem Abdullah v. J and K Academy of Art, Culture and
Languages and others, 2004 (3) JKJ 407, at Para No.11, the Hon’ble
High Court of Jammu and Kashmir at Jammu, held thus:
“11. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, 2003 (4)
SCC 712. Their Lordships of the Supreme Court opined that the High Court in
exercise of its Writ jurisdiction in a matter of the nature of the present case is
required to determine at the outset as to whether a case has been made out for
issuance of a writ of certiorari or a Writ of Quo Warranto. The jurisdiction of the
High Court to issue a Writ of Quo Warranto is a limited one and while issuing
such a writ, the Court merely makes a public declaration but will not consider the
respective impact of the candidates or other factors, which may be relevant for
issuance of a writ of certiorari. In Paragraph 23 of the Judgment, their lordships
have emphatically held that a Writ of Quo Warranto can only be issued when the
appointment is contrary to the statutory rules.”
(viii) In B.R. Kapur v. State of Tamil Nadu and ors., 2001 (4) CTC 219
(SC) : 2001 (7) SCC 231, at Paragraph Nos.79 to 81, the Hon’ble
Supreme Court, held thus:

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January 2021 B. Radhakrishna Menon v. State of Kerala 341
(DB) (Ker.) (S. Manikumar, C.J.)
“79. .............A Writ of Quo Warranto is a writ which lies against the person,
who according to the relator is not entitled to hold an office of public nature and
is not an usurper of the office. It is the person, against whom the Writ of Quo
Warranto is directed, who is required to show, by what authority that person is
entitled to hold the office. The challenge can be made on various grounds,
including on the grounds that the possessor of the office does not fulfill the
required qualifications or suffers from any disqualification, which debars the
person to hold such office. So as to have an idea about the nature of action in a
proceedings for Writ of Quo Warranto and its original form, as it used to be, it
would be beneficial to quote from Words and Phrases, Permanent Edn., Vol. 35-
A, p. 648. It reads as follows:
The original common-law Writ of Quo Warranto was a Civil Writ at the Suit of
the Crown, and not a Criminal prosecution. It was in the nature of a writ of right
by the King against one who usurped or claimed franchises or liabilities, to
inquire by what right he claimed them. This writ, however, fell into disuse in
England centuries ago, and its place was supplied by an information in the nature
of a quo warranto, which in its origin was a Criminal method of prosecution, as
well to punish the usurper by a fine for the usurpation of the franchise, as to oust
him or seize it for the Crown. Long before our revolution, however, it lost its
character as a Criminal proceeding in everything except form, and was applied to
the mere purposes of trying the civil right, seizing the franchise, or ousting the
wrongful possessor, the fine being nominal only and such, without any special
legislation to that effect, has always been its character in many of the States of
the Union, and it is therefore a Civil remedy only. Ames v. State of Kansas 4
S.Ct. 437, 442 : 111 US 449 : 1 Ed 482 (1884), People v. Dashaway Assn. 24 P
277, 278 : 84 Cal 114.
80. In the same volume of Words and Phrases, Permanent Edn., at p. 647 we
find as follows:
The Writ of ‘Quo Warranto’ is not a substitute for mandamus or injunction nor
for an Appeal or writ of error, and is not to be used to prevent an improper
exercise of power lawfully possessed, and its purpose is solely to prevent an
officer or corporation or persons purporting to act as such from usurping a
power which they do not have. State Ex inf. McKittrick v. Murphy 148 SW 2d
527, 529, 530 : 347 Mo 484.
Information in nature of ‘quo warranto’ does not command performance of
official functions by an officer to whom it may run, since it is not directed to
officer as such, but to person holding office or exercising franchise, and not for
purpose of dictating or prescribing official duties, but only to ascertain whether
he is rightfully entitled to exercise functions claimed. State ex inf. Walsh v.
Thatche 102 SW 2d 937, 938 : 340 Mo 865.
81. In Halsbury’s Laws of England, 4 th Edn., Reissue Vol. I, p. 368, Para 265 it
is found as follows:
266. In general -- An information in the nature of a quo warranto took the
place of the obsolete Writ of Quo Warranto which lay against a person, who
claimed or usurped an office, franchise, or liberty, to inquire by what authority
he supported his claim, in order what the right to the office or franchise might
be determined.”

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(ix) In P.L. Lakhanpal v. A.N. Ray and ors., AIR 1975 Del. 66, the
Hon’ble Delhi High Court, held thus:
“(7) Before I deal with the points raised, I will state what I understand to be the
scope and ambit of a Writ of Quo Warranto. A Writ of Quo Warranto poses a
question to the holder of a public office. In plain English language, the question
is “where is your warrant of appointment by which you are holding this office ?”
In its inception in England such a writ was a writ of right issued on behalf of the
Crown requiring a person to show by what authority he exercised his office,
franchise, or liberty. Webster’s Third New International Dictionary, Volume Ii,
describes it as “a legal proceeding that is brought by the state, sovereign, or
Public officer, has a purpose similar to that of the ancient Writ of Quo Warranto,
is usually Criminal in form and sometimes authorizes the imposition of a fine but
is essentially Civil in nature and seeks to correct often at the relation or on the
Complaint of a private person a usurpation, misuser, or nonuser of a public office
or corporate or public franchise, and may result in Judgments of ouster against
individuals and of ouster and seizure against corporations.”
(8) Halsbury’s Laws of England, Third Edition, Volume 11, Para 281 (1)
contains a summary of the decisions of English Courts with regard to the
discretion of the Court in issuing a Writ of Quo Warranto. It is said:
“An information in the nature of a quo warranto was not issued, and an
injunction in lieu thereof will not be granted, as a matter of course. It is in the
discretion of the Court to refuse or grant it according to the facts and
circumstances of the case........... the Court might in its discretion decline to
grant a quo warranto information where it would be vaxatious to do so, or
where an information would be futile in its results, or where there was an
alternative remedy which was equally appropriate and effective.”
(9) The leading case on the subject of quo warranto from which many of the
statements are derived is R. v. Speyer, 1916 (1) KB 595. Lord Reading, Chief
Justice has observed:
“If the irregularity in the appointment of an office held at pleasure could be
cured by immediate reappointment, the Court in the exercise of its discretion
would doubtless refuse the information.”
Lush, J. expressed the view that the Court would not make an order ousting the
holders of public offices from their office if the existing defect, if there is one,
could be cured, and they could be reappointed. Rex v. Stacey, 99 Engl Rep 938
holds that writ of quo warrant, is not a motion of course and it is in the
discretion of the Court to issue it considering the circumstances of the case.
Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford : The Rev.
Thomas Thellusson Carter: 5 AC 214 (3) also states that the issue of Writ of Quo
Warranto is in the discretion of a Court. The Canadian view as stated in King
excel Boudret v. Johnston, 1923 (2) DLR 278, is that the Court has to take into
consideration Public interest, the consequences to follow the issue of a Writ of
Quo Warranto and all the circumstances of the case. These general propositions
have been accepted in America as appears from the statements contained in
Sections 5, 9, 10 & 18 in American Jurisprudence, Second Edition, Volume 65.

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January 2021 B. Radhakrishna Menon v. State of Kerala 343
(DB) (Ker.) (S. Manikumar, C.J.)
(10) The above views and statements indicate and reflect the principles which
have guided Courts outside our country in issuing writs of quo warranto. There
is abundant authority that these principles have been accepted and applied in this
country. University of Mysore and another v. C. D. Govinda Rao and another,
1964 (4) SCR 575 affirms some of these principles. One is that a Writ of Quo
Warranto is a writ of technical nature. The following statement in Halsbury’s
Laws of England, Third Edition, Volume Ii, page 145 is quoted with approval:
“An information in the nature of a quo warranto took the place of the obsolete
Writ of Quo Warranto which lay against a person who claimed or usurped an
office, franchise, or liberty, to inquire by what authority he supported his claim,
in order that the right to the office or franchise might be determined.”
It is then stated:
“Broadly stated, the quo warranto proceeding affords a judicial remedy by
which any person, who holds an independent substantive public office or
franchise or liberty, is called upon to show by what right he holds the said
office, franchise or liberty, so that his title to it may be duly determined, and in
case the finding is that the holder of the office has no title, he would be ousted
from that office by judicial order. In other words, the procedure of quo
warranto gives the judiciary a weapon to control the Executive from making
appointments to public office against law and to protect a citizen from being
deprived of Public office to which he has a right. These proceedings also tend
to protect the public from usurpers of Public office, who might be allowed to
continue either with the connivance of the Executive or by reason of its apathy.
It will, thus, be seen that before a person can effectively claim a Writ of Quo
Warranto, he has to satisfy the Court that the office in question is a public
office and is held by a usurper without legal authority, and that inevitably
would lead to the enquiry as to whether the appointment of the alleged usurper
has been made in accordance with law or not.”
(11) The other cases cited hereafter affirm and apply some other principles.
(12) Now, one of the main heads in the contention of the Attorney General, as is
pointed out later, is based on R v. Speyer (supra) and it is that a Writ of Quo
Warranto will not issue if it is found that the issuance of such a writ will be futile
where the alleged usurper could be immediately re-appointed to the very post. It
is contended on behalf of the petitioners that this principle has not been accepted
in this country, that the limitations mentioned for the issue of a Writ of Quo
Warranto are not applicable here and that the scope of quo warranto as also of
other writs which can be issued by the High Courts and the Supreme Court is
wider in view of the words “in the nature of” appearing in Articles 32 & 226 of
the Constitution. These words do not justify the argument because these very
words preface the words “a Quo warranto” as is apparent from para 273 at page
145 of Halsbury’s Laws of England, Third Edition, Volume II. Certain cases
have been cited to support this proposition. I do not think any of them supports
it. The first case is Statesman (Private) Ltd. v. H. R. Dev and others, 1968 (3)
SCR 614. The question in this case was whether a Sub-Deputy Collector vested
with magisterial powers could be said to have held a judicial office within the
meaning of Section 7(3)(d) of the Industrial Disputes Act, 1947 so as to make
him eligible for appointment as the Presiding Officer of a Labour Court. The

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case started by way of a writ of certiorari under Article 226 of the Constitution
against the order of the Presiding Officer. It was held that a Magistrate holds a
judicial office. Sub-section (1) of section 9 of the Act conferred finality to orders
Constituting Boards etc. It was in the context of this section that a passing
observation was made by the Supreme Court that “although the provisions of
Section 9 cannot shut out an inquiry (if there is a clear usurpation) for purposes
of a Writ of Quo Warranto but at least in an unclear case the intent of the
legislature is entitled to great weight .................. The High Court in a quo
warranto proceeding should be slow to pronounce upon the matter unless there
is a clear infringement of the law.” In effect, these observations are no different
than those in University of Mysore and another v. C.D. Govinda Rao and
another, (supra). It was further observed that it may be open in a quo warranto
proceeding to challenge the appointment of persons employed on multifarious
duties and in addition performing some judicial functions on the ground that they
do not hold essentially a judicial office because they primarily perform other
functions. This case is not relevant to the argument of the wider scope of writs
issuable under Articles 226 of the Constitution. It was a case to which the
principle “could be re-appointed” would not apply. In Priti Prabha Goel v. Dr.
C. P. Singh and others, 1969 (2) Lab Indu Cas 913, the appointment of the
Respondent as Professor in the University of Jodhpur was challenged on the
ground that such an appointment could be made by the Syndicate only on the
recommendation of the selection committee and in the absence of such
recommendation, the Syndicate is incompetent and has no power to appoint any
one as a teacher in the University. It was held by the Rajasthan High Court that
there is a public policy behind the salutary provision of selection committee
prescribed in the Statutes and as the University is a State under Article 12 of the
Constitution, every citizen has a right to be considered for these posts if he is
duly qualified as otherwise there will be violation of Article 16 of the
Constitution. No argument of futility of the writ was advanced in this case
because it was irrelevant. In M.S. Mahadeokar v. Chief Commissioner, Union
Territory, Chandigarh and others, 1973 (1) SLR 1042, the appointment of two
of the Respondents was challenged by a Writ of Quo Warranto. One of the
Respondents did not fulfill the qualifications under the service rules and was not
eligible for the posts while the other was junior to the Petitioner. A contention
was raised by the Respondents that a Writ of Quo Warranto cannot be issued if
the defect can be remedied by the authority, who committed the mistake by
amending the rules with retrospective effect. The principle of “could be
reappointed” is entirely different. It does not contemplate a change in the
existing law. It proceeds on the basis that there is no legal impediment to a re-
appointment according to the law as it stands. A possibility of change in the law
with retrospective effect, as suggesed in this case, would not come within the
principle of futility of the writ. By reason of lacking in qualifications or being
junior, there was an existing legal impediment to re-appointment. The next case
relied upon is Prabhudutt Sharma v. State of Rajasthan and others, 1971 Lab
Indu Cas 556. This case, rather than support the petitioners, goes against their
contention. It is clearly stated that the conditions for the issue of a Writ of Quo
Warranto are similar to those for laying an information in the nature of a quo
warranto in England. Then it specifies the four requisites for a Writ of Quo
Warranto namely, (1) the office must be held under the State or have been
created by a statute, (2) it should be an office of a substantive character, (3) its

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January 2021 B. Radhakrishna Menon v. State of Kerala 345
(DB) (Ker.) (S. Manikumar, C.J.)
duties must be of a public nature and (4) it should have been usurped by some
person. Then it proceeds to state what is more important that even when these
requirements are fulfilled, it is in the discretion of the Court to refuse or grant the
writ after taking into consideration the circumstances of the case and the
consequences which would follow if it is allowed and that it should be in the
Public interest to grant the writ. These are some of the limitations which
obtained in England as to a Writ of Quo Warranto. In fact, this case refers to and
relies on R v. Speyer (supra) and the statements made in Paragraph 281, Volume
Ii in the Third Edition of Halsbury’s Laws of England which have been already
quoted. In this case it was alleged that the appointments of two of the
Respondents were in violation of the statute as they were ineligible for
appointment as they did not posses the necessary qualifications. The Rajasthan
High Court found as a fact that the two holders of the office lacked the essential
qualifications and were not eligible for appointment. If the holder of a Public
office is ineligible for appointment to that office and remains ineligible up to the
date of the hearing of the Writ Petition, he is undoubtedly a usurper and the
application of the principle of futility of writ by re-appointment or of in the
circumstances of the case or of the discretion of the Court would not arise. It is,
Therefore not, possible to see how this case advances the contention of the
Petitioners that the scope of a Writ of Quo Warranto in India is wider than that
in England. In fact, in Hari Shankar Prasad Gupta v. Sukhdeo Prasad and
another, AIR 3954 All 227; R v. Speyer (supra) was referred and the principle of
futility of issue of a Writ of Quo Warranto was applied. The Writ of Quo
Warranto was refused as the holder of the office though not qualified on the date
of his appointment thereto acquired the necessary qualification during the
pendency of the Petition. With respect, I agree with this view rather than with the
view expressed in Govinda Panicker v. K. Balakrishna Marar and another, AIR
1955 TC 42. If the view of the Travancore-Cochin High Court is to be accepted,
it will mean that the principle “could be re-appointed” does not apply. In my
view it does. In Narayan Keshav Dandekar v. R. C. Rathi and another, AIR 1963
MP 17. Apart from holding that the appointment was in violation of the
provisions of a statute, it was held that the appointment had been made contrary
to Article 16 of the Constitution as before making the appointment, the post was
not regularly advertised nor were any applications invited from persons qualified
to hold the post. No argument of futility was addressed in this case possibly
because the appointment was held to be in violation of Article 16 of the
Constitution thereby depriving other person from applying for the post. This case
can, Therefore, be no authority for the proposition now being considered. In
Puranlal Lakhanpal v. Dr. P.C. Ghosh and others, AIR 1970 Cal 118, the
question was whether a Writ of Quo Warranto should issue to a person, who had
resigned from his office. I do not at all see the relevancy of this case to the
contention being discussed now. None of these cases, Therefore, supports the
argument that scope of Articles 32 & 226 is wider in so far as the Writ of Quo
Warranto is concerned.
(13) On the other hand, in Janardan Reddy and others v. The State of Hyderabad
and others, 1951 Supreme Court Reports 344
(14) it has been observed that the power given to it under Part Iii of the
Constitution is not wider than it is in England and courts in this with well
established principles. In T.C. Basappa v. T. Nagappa and another, 1955 (1)

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346 LABOUR LAW NOTES 2021 (1) LLN

SCR 250, the same principle has been repeated but it has been clarified that the
procedural technicalities of the English law do not apply. These cases help me to
re-affirm the view that the scope of the power of the High Court to issue a Writ
of Quo Warranto under Article 226 of the Constitution is not wider than it is in
England and Courts in this country have followed the principles including the
limitations which have been well established in England. In fact, in University of
Mysore and another v. C.D. Govinda Rao and another (supra), the Supreme
Court has observed that a Writ of Quo Warranto is a writ of technical nature and
has approved the statements made in Halsbury’s Laws of England in that
behalf.”
43. Added further, it is also worthwhile to consider few other decisions
on Writ of Quo Warranto:
(i) In N. Kannadasan and ors. v. Ajoy Khose and ors., 2009 (7) SCC 1,
the Hon’ble Supreme Court observed thus:
“148. Concedingly, Judicial Review for the purpose of issuance of Writ of Quo
Warranto in a case of this nature would lie:
(A) in the event the holder of a public office was not eligible for appointment;
(B) Processual machinery relating to consultation was not fully complied.
149. The Writ of Quo Warranto proceedings affords a judicial remedy by which
any person, who holds an independent substantive Public office is called upon to
show by what right he holds the same so that his title to it may be duly
determined and in the event it is found that the holder has no title he would be
directed to be removed from the said office by a Judicial Order. The proceedings
not only give a weapon to control the executive from making appointments to
Public office against law but also tend to protect the public from being deprived
of Public office to which it has a right.
150. It is indisputably a high prerogative writ which was reserved for the use of
Crown.
151. The width and ambit of the writ, however, in the course of practice, have
widened and it is permissible to pray for issuance of a writ in the nature of quo
warranto.
152. In Corpus Juris Secundum [74 C.J.S. Quo warranto § 14], ‘quo warranto’
is defined as under:
Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate
remedy to test the right or title to an office, and to remove or oust an incumbent.
It is prosecuted by the State against a person, who unlawfully usurps, intrudes, or
holds a Public office. The relator must establish that the office is being
unlawfully held and exercised by Respondent, and that realtor is entitled to the
office.
153. In the Law Lexicon by J.J.S. Wharton, Esq., 1987, ‘Quo warranto’ has been
defined as under:

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January 2021 B. Radhakrishna Menon v. State of Kerala 347
(DB) (Ker.) (S. Manikumar, C.J.)
Quo warranto, a writ issuable out of the Queen’s Bench, in the nature of a writ
of right, for the Crown, against him who claims or usurps any office, franchise,
or liberty, to enquire by what authority he supports his claim, in order to
determine the right. It lies also in case of non-user, or long neglect of a franchise,
or mis-user or abuse of it; being a writ commanding the Defendant to show by
what warrant he exercises such a franchise having never had any grant of it, or
having forfeited it be neglect or abuse.
154. Indisputably a Writ of Quo Warranto can be issued inter alia when the
appointment is contrary to the statutory rules as has been held by this Court in
High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (supra) and R.K.
Jain v. Union of India and ors., 1993 (4) SCC 119. See also Mor Modern Coop.
Transport Society Ltd. v. Financial Commr. & Secy., 2002 Supp 1 SCR 87.
155. In Dr. Duryodhan Sahu and ors. v. Jitendra Kumar Mishra and ors. 1998
(2) LLJ 1013 SC, this Court has stated that it is not for the Court to embark upon
an investigation of its own to ascertain the qualifications of the person
concerned. [See also Arun Singh alias Arun Kr. Singh v. State of Bihar and ors.,
AIR 2006 SC 1413]
156. We may furthermore notice that while examining if a person holds a Public
office under valid authority or not, the Court is not concerned with technical
grounds of delay or motive behind the challenge, since it is necessary to prevent
continuance of usurpation of office or perpetuation of an illegality. [See Dr.
Kashinath G. Jalmi and anr. v. Speaker and ors., 1993 (2) SCR 820].
157. Issuance of a Writ of Quo Warranto is a discretionary remedy. Authority of
a person to hold a high public office can be questioned inter alia in the event an
appointment is violative of any statutory provisions.
163. It was held that a Writ of Quo Warranto can be issued even when the
President or the Governor had appointed a person to a constitutional office. It
was furthermore held that the qualification of that person to hold that office can
be examined in a quo warranto proceedings and the appointment can be
quashed.”
(iii) In Renu and ors. v. District and Sessions Judge, Tis Hazari and
ors., 2014 (14) SCC 50, the Hon’ble Supreme Court held as follows:
“15. Where any such appointments are made, they can be challenged in the Court
of law. The quo warranto proceeding affords a judicial remedy by which any
person, who holds an independent substantive Public office or franchise or
liberty, is called upon to show by what right he holds the said office, franchise or
liberty, so that his title to it may be duly determined, and in case the finding is
that the holder of the office has no title, he would be ousted from that office by
Judicial Order. In other words, the procedure of quo warranto gives the Judiciary
a weapon to control the Executive from making appointment to Public office
against law and to protect a citizen from being deprived of public office to which
he has a right. These proceedings also tend to protect the public from usurpers of
public office who might be allowed to continue either with the connivance of the
Executive or by reason of its apathy. It will, thus, be seen that before a person
can effectively claim a Writ of Quo Warranto, he has to satisfy the Court that the
office in question is a Public office and is held by a usurper without legal

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348 LABOUR LAW NOTES 2021 (1) LLN

authority, and that inevitably would lead to an enquiry as to whether the

appointment of the alleged usurper has been made in accordance with law or not.
For issuance of Writ of Quo Warranto, the Court has to satisfy that the
appointment is contrary to the statutory rules and the person holding the post has
no right to hold it. (Vide: University of Mysore and anr. v. C.D. Govinda Rao
and anr., AIR 1965 SC 491; Shri Kumar Padma Prasad v. Union of India and
ors., AIR 1992 SC 1213; B.R. Kapur v. State of Tamil Nadu and anr., AIR 2001
SC 3435; Mor Modern Co-operative Transport Society Ltd. v. Financial
Commissioner and Secretary to Govt., Haryana and anr., AIR 2002 SC 2513;
Arun Singh v. State of Bihar and ors., AIR 2006 SC 1413; Hari Bansh Lal v.
Sahodar Prasad Mahto and ors., AIR 2010 SC 3515; and Central Electricity
Supply Utility of Odisha v. Dhobei Sahoo and ors., 2014 (1) SCC 161).”
(iii) In Premkumar T.R. v. Mahatma Gandhi University and ors., ILR
2018 (1) Ker. 993, this Court held thus:
“27. Well established is the legal proposition that a Writ of Quo Warranto lies
when the appointment is made contrary to the statutory provisions. True, the
University and Dr. Sebastian, too, have questioned Premkumar’s locus standi to
file the Writ Petition. Dr. Sebastian has, in fact, alleged that Premkumar was
fielded by persons unhappy with his appointment as the Vice-Chancellor. But
this objection to the suitor’s standing in a Writ of Quo Warranto cannot detain us
for long. Legion are the judicial precedents.
28. If we examine this prerogative writ quo warranto from the judicial
perspective of England, the place of its origin, the writ’s primary object is to
shield the sovereignty of the Crown from invasion, and to prevent abuse of
Public office, by a usurper or intruder. So every subject is deemed to be
interested and may institute quo warranto proceedings. [Halsbury’s Laws of
England (4th Edn.) Vol. 1, Paras 179-80, as quoted in V.G. Ramachandran’s
Law of Writs, EBC (2006), p. 1355]
29. In India, too, any person may challenge the validity of an appointment to a
Public office, whether or not that person’s fundamental or other legal right has
been infringed. But the Court must be satisfied that the person so applying is
bona fide, and there is a necessity in Public interest to declare judicially that
there is a usurpation of public office. [Id., 1355] Indisputably, a Writ of Quo
Warranto questioning a usurper’s occupying Public office, according to the
Supreme Court, can be maintained even by a busybody (N. Kannadasan v. Ajoy
Khose, 2009 KHC 4424 : 2009 (2) KLT SN 70 : 2009 (7) SCC 1 : 2009 (8)
SCALE 351).
30. A citizen can claim a Writ of Quo Warranto, for he stands in the position of a
relater. He need not have any special or personal interest. The real test is to see
whether the person holding the office is authorised to hold the same under law.
Delay and laches, according to the Supreme Court in Rajesh Awasthi v. Nand Lal
Jaiswal, 2012 KHC 4631 : 2012 (4) KLT SN 94 : AIR 2013 SC 78 : 2013 (1)
SCC 501 : 2013 (1) SCC (Cri) 521 : 2013 (1)(L & S) 192, constitute no
impediment for the Court to deal with the lis on merits.
31. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, 2013 KHC
4873 : 2013 (4) KHC SN 31 : 2013 (13) SCALE 477 : AIR 2014 SC 246 : 2014

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January 2021 B. Radhakrishna Menon v. State of Kerala 349
(DB) (Ker.) (S. Manikumar, C.J.)
(1) SCC 161 : 2014 (1) KLT SN 58, the Supreme Court has pointed out that the
concept of locus standi, which strictly applies to service jurisprudence, should
have no entry, for such allowance is likely to exceed the limits of quo warranto.
The basic purpose of a Writ of Quo Warranto, it was pointed out, is to confer
jurisdiction on the Constitutional Courts to see that the Public office is not held
by a usurper, a person with no legal authority.
(iv) In Bharati Reddy v. State of Karnataka and ors., 2018 (6) SCC 162,
the Hon’ble Supreme Court held as follows:
“26. In K. Venkatachalam v. A. Swamickan, AIR 1999 SC 1723 : 1999 (4) SCC
526, the challenge was to the election of the Appellant to the Legislative
Assembly in Tamil Nadu by way of a writ under Article 226 of the Constitution
filed by the contesting candidate (Respondent therein) for a declaration that the
Appellant was not qualified to be a Member of Tamil Nadu Legislative
Assembly, since he was not enrolled as an elector in the electoral roll in the
concerned constituency for the general elections in question. The Court analysed
the factual matrix which pointed out that, admittedly, the incumbent was not an
elector of the concerned constituency and that he blatantly and fraudulently
impersonated himself as another elector in the constituency. Accepting that
indisputable position, the Court proceeded to conclude that the Appellant was
not eligible to contest elections from the concerned constituency, not being a
voter in that constituency. It thus held that the Appellant therein lacked the basic
qualification under Clause (c) of Article 173 of the Constitution of India read
with Section 5 of the 1951 Act, which was quintessential to be elected from the
constituency. On such finding, the Court entertained the Writ Petition under
Article 226 and declared the Appellant to be occupying the Public office without
legal authority and issued a Writ of Quo Warranto. In other words, the matter
was decided on the basis of indisputable and established facts. This Judgment
will be of no avail to the Writ Petitioners in the present case, so long as the
Income and Caste Certificate issued to the Appellant is in force.
27. In Kurapati Maria Das v. Ambedkar Seva Samajan, 2009 (7) SCC 387, the
Court distinguished the decision in K. Venkatachalam (supra) being on the facts
of that case and reversed the Judgment of the High Court under challenge,
whereby a Writ of Quo Warranto was issued against the Appellant therein. The
reason for doing so may have some bearing on the matter in issue as in that case,
there was dispute about the caste status of the Appellant. The Court opined that
the issue regarding the caste status can be decided only by the Competent
Authority under the relevant enactment and not by the High Court. The Court
accepted the contention of the Appellant that continuance of the post of
Chairperson depended directly on his election, firstly, as a ward member and
secondly as the Chairperson, which election was available only to the person
belonging to the Scheduled Caste. In Paragraph 32 of the reported decision, the
Court while accepting the contention of the Appellant noted that the question of
caste and his election are so inextricably connected that they cannot be separated
and therefore, when the Writ Petitioners challenged the continuation of the
Appellant on the ground of his not belonging to a particular caste what they
actually challenged was the validity of the election of Appellant though,
apparently, the petition was for a Writ of Quo Warranto.

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(v) In Mahesh Chandra Gupta v. Union of India, 2014 (1) SCC 161,
Hon’ble Supreme Court in Para No. 26 held as follows:
“26. ....... Writ of Quo Warranto can be issued only when person holding public
office lacks eligibility or when appointment is contrary to statutory rules and
held as under in Paragraph 21:
“21. From the aforesaid exposition of law it is clear as noonday that the
jurisdiction of the High Court while issuing a Writ of Quo Warranto is a
limited one and can only be issued when the person holding the Public office
lacks the eligibility criteria or when the appointment is contrary to the statutory
rules. That apart, the concept of locus standi which is strictly applicable to
service jurisprudence for the purpose of canvassing the legality or correctness
of the action should not be allowed to have any entry, for such allowance is
likely to exceed the limits of quo warranto which is impermissible. The basic
purpose of a Writ of Quo Warranto is to confer jurisdiction on the
constitutional Courts to see that a Public office is not held by usurper without
any legal authority.”
44. Decisions relied by the learned Senior Government Pleader, in order
to contend that PIL instituted by the Petitioner is not maintainable, are
Gurpal Singh’s case (cited supra), Manohar Lal Sharma’s case (cited
supra) and Mythri Residents Association v. Secretary, Tripunithura
Municipality and others, 2019 KHC 832. In Mythri Residents Association’
case (cited supra), this Court considered a catena of Judgments on Public
interest Litigation, which are extracted hereunder:
(i) In S.P. Anand v. H.D. Deve Gowda, 1996 (6) SCC 734, the Hon’ble
Supreme Court, at Paragraph 18, held as follows:
“It is of utmost importance that those, who invoke this Court’s jurisdiction
seeking a waiver of the locus standi rule must exercise restraint in moving the
Court by not plunging in areas wherein they are not well-versed. Such a litigant
must not succumb to spasmodic sentiments and behave like a knight-errant
roaming at will in pursuit of issues providing publicity. He must remember that
as a person seeking to espouse a public cause, he owes it to the public as well as
to the Court that he does not rush to Court without undertaking a research, even
if he is qualified or competent to raise the issue. Besides, it must be remembered
that a good cause can be lost if Petitions are filed on half-baked information
without proper research or by persons, who are not qualified and competent to
raise such issues as the rejection of such a Petition may affect third party rights.
Lastly, it must also be borne in mind that no one has a right to the waiver of the
locus standi rule and the Court should permit it only when it is satisfied that the
carriage of proceedings is in the competent hands of a person, who is genuinely
concerned in Public interest and is not moved by other extraneous
considerations. So also the Court must be careful to ensure that the process of the
Court is not sought to be abused by a person, who desires to persist with his
point of view, almost carrying it to the point of obstinacy, by filling a series of
Petitions refusing to accept the Court’s earlier decisions as concluding the point.
We say this because when we drew the attention of the Petitioner to earlier
decisions of this Court, he brushed them aside, without so much as showing

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January 2021 B. Radhakrishna Menon v. State of Kerala 351
(DB) (Ker.) (S. Manikumar, C.J.)
willingness to deal with them and without giving them a second look, as having
become stale and irrelevant by passage of time and challenged their correctness
on the specious plea that they needed reconsideration. Except for saying that they
needed reconsideration he had no answer to the correctness of the decisions.
Such a casual approach to considered decisions of this Court even by a person
well-versed in law would not be countenanced. Instead, as pointed out earlier, he
referred to decisions having no bearing on the question, like the decisions on
cow slaughter cases, freedom of speech and expresssion, uniform Civil code,
etc., we need say no more except to point out that indiscriminate of this
important lever of Public interest litigation would blunt the lever itself.”
(ii) In Narmada Bachao Andolan v. Union of India and others, 2000
(10) SCC 664, the Hon’ble Apex Court observed as follows:
“232. While protecting the rights of the people from being violated in any
manner utmost care has to be taken that the Court does not transgress its
jurisdiction. There is, in our constitutional framework a fairly clear demarcation
of powers. The Court has come down heavily whenever the executive has sought
to impinge upon the Court’s jurisdiction.
233. At the same time, in exercise of its enormous power, the Court should not
be called upon to or undertake governmental duties or functions. The Courts
cannot run the Government nor can the administration indulge in abuse or non-
use of power and get away with it. The essence of Judicial Review is a
constitutional fundamental. The role of the higher judiciary under values of the
Constitution and the rights of Indians. The Courts must therefore, act within their
judicially permissible limitations to uphold the rule of law and harness their
power in Public interest. It is precisely for this reason that it has been
consistently held by this Court that in matters of policy the Court will not
interfere. When there is a valid law requiring the Government to act in a
particular manner the Court ought not to, without striking down the law, give any
direction which is not in accordance with law. In other words, the Court itself is
not above the law.”
(iii) In Balco Employees’ Union (Regd.) v. Union of India, 2002 (1)
CTC 88 (SC) : 2002 (2) SCC 333, the Hon’ble Supreme Court, held
that—
“Public interest litigation, or PIL as it is more commonly known, entered the
Indian Judicial process in 1970. It will not be incorrect to say that it is primarily
the Judges, who have innovated this type of litigation as there was a dire need for
it. At that stage, it was intended to vindicate Public interest where fundamental
and other rights of the people, who were poor, ignorant or in socially or
economically disadvantageous position and were unable to seek legal redress
were required to be espoused. PIL was not meant to be adversial in nature and
was to be a cooperative and collaborative effort of the parties and the Court so as
to secure justice for the poor and the weaker sections of the community who
were not in a position to protect their own interests. Public interest litigation was
intended to mean nothing more than what words themselves said viz. “litigation
in the interest of the public....

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352 LABOUR LAW NOTES 2021 (1) LLN

97. Judicial interference by way of PIL is available if there is injury to public

because of dereliction of constitutional or statutory obligations on the part of the
Government. Here it is not so and in the sphere of economic policy or reform the
court is not the appropriate forum. Every matter of Public interest or curiosity
cannot be the subject matter of PIL. Courts are not intended to and nor should
they conduct the administration of the country. Courts will interfere only if there
is a clear violation of constitutional or statutory provisions or non-compliance by
the State with its constitutional or statutory duties. None of these contingencies
arise in this present case.”
(iv) In Guruvayoor Devaswom Managing Committee and another v.
C.K. Rajan and others, 2003 (7) SCC 546, the Hon’ble Supreme Court
observed as follows:
“41. The Courts exercising their power of Judicial Review found to their dismay
that the poorest of the poor, the depraved (sic), the illiterate, the urban and rural
unorganized labour sector, women, children, those handicapped by “ignorance,
indigence and illiteracy” and other downtrodden persons have either no access to
justice or had been denied justice. A new branch of proceedings known as
“social action litigation” or “Public interest litigation” was evolved with a view
to render complete justice to the aforementioned classes of persons. It expanded
its wings in course of time. The Courts in pro bono publico granted relief to
inmates of prisons, provided legal aid, directed speedy trials, maintenance of
human dignity and covered several other areas. Representative actions, pro bono
publico and test litigations were entertained in keeping with the current accent on
justice to the common man and a necessary disincentive to those, who wish to
bypass real issues on merits by suspect reliance on peripheral procedural
shortcomings. [See Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, 1976 (3)
SCC 832]
46. But with the passage of time, things started taking different shapes. The
process was sometimes abused. Proceedings were initiated in the name of Public
interest litigation for ventilating private disputes. Some petitions were publicity-
oriented.
50. The principles evolved by this Court in this behalf may be suitably
summarized as under:
(i) The Court in exercise of powers under Article 32 and Article 226 of the
Constitution of India can entertain a Petition filed by any interested person in
the welfare of the people, who is in a disadvantaged position and, thus, not in a
position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental rights of such
disadvantaged people so as to direct the State to fulfill its constitutional
promises. (See S.P. Gupta v. Union of India, 1981 Supp SCC 87; People’s
Union for Democratic Rights v. Union of India, 1982 (2) SCC 494 : 1982 SCC
(L&S) 262; Bandhua Mukti Morcha v. Union of India, AIR 1963 SC 1638 :
1964 (1) SCR 561; and Janata Dal v. H.S. Chowdhary, 1992 (4) SCC 305 :
1993 SCC (Cri) 36).
(ii) Issues of public importance, enforcement of fundamental rights of a large
number of the public vis-à-vis the constitutional duties and functions of the

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January 2021 B. Radhakrishna Menon v. State of Kerala 353
(DB) (Ker.) (S. Manikumar, C.J.)
State, if raised, the Court treats a letter or a telegram as a Public interest
litigation upon relaxing procedural laws as also the law relating to pleadings.
(See Charles Sobraj v. Supdt., Central Jail, 1978 (4) SCC 104 : 1978 SCC
(Cri) 542; and Hussainara Khatoon (I) v. Home Secy., State of Bihar, 1980 (1)
SCC 81 : 1980 SCC (Cri) 23).
(iii) Whenever injustice is meted out to a large number of people, the Court
will not hesitate in stepping in. Articles 14 & 21 of the Constitution of India as
well as the International Conventions on Human Rights provide for reasonable
and fair trial.”
(v) In Ashok Kumar Pandey v. State of W.B., 2004 (3) SCC 349, the
Hon’ble Apex Court, after considering few decisions, on the aspect of
Public interest litigation, observed as follows:
“4. When there is material to show that a petition styled as a Public interest
litigation is nothing but a camouflage to foster personal disputes, said Petition is
to be thrown out. Before we grapple with the issue involved in the present case,
we feel it necessary to consider the issue regarding Public interest aspect. Public
interest Litigation which has now come to occupy an important field in the
administration of law should not be “publicity interest litigation” or “Private
interest litigation” or “politics interest litigation” or the latest trend “paise
income litigation”. If not properly regulated and abuse averted it becomes also a
tool in unscrupulous hands to release vendetta and wreck vengeance, as well.
There must be real and genuine Public interest involved in the litigation and not
merely an adventure of knight errant or poke ones into for a probe. It cannot also
be invoked by a person or a body of persons to further his or their personal
causes or satisfy his or their personal grudge and enmity. Courts of justice should
not be allowed to be polluted by unscrupulous litigants by resorting to the
extraordinary jurisdiction. A person acting bona fide and having sufficient
interest in the proceeding of Public interest litigation will alone have a locus
standi and can approach the Court to wipe out violation of fundamental rights
and genuine infraction of statutory provisions, but not for personal gain or
private profit or political motive or any oblique consideration. These aspects
were highlighted by this Court in Janta Dal v. H.S. Chowdhary, 1992 (4) SCC
305; and Kazi Lhendup Dorji v. Central Bureau of Investigation, 1994 Supp (2)
SCC 116. A Writ Petitioner who comes to the Court for relief in Public interest
must come not only with clean hands like any other Writ Petitioner but also with
a clean heart, clean mind and clean objective. See Ramjas Foundation v. Union
of India, AIR 1993 SC 852; and K.R. Srinivas v. R.M. Premchand, 1994 (6) SCC
620.
5. It is necessary to take note of the meaning of expression ‘Public interest
litigation’. In Strouds Judicial Dictionary, Volume 4 (IV Edition), ‘Public
interest’ is defined thus:
“Public interest (1) a matter of public or general interest does not mean that
which is interesting as gratifying curiosity or a love of information or
amusement but that in which a class of the community have a pecuniary
interest, or some interest by which their legal rights or liabilities are affected.”

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354 LABOUR LAW NOTES 2021 (1) LLN

6. In Black’s Law Dictionary (Sixth Edition), “Public interest” is defined as

follows:
“Public interest something in which the public, or some interest by which their
legal rights or liabilities are affected. It does not mean anything the particular
localities, which may be affected by the matters in question. Interest shared by
national Government....”
7. In Janata Dal case (supra), this Court considered the scope of Public interest
litigation. In Para 52 of the said Judgment, after considering what is Public
interest, has laid down as follows:
“The expression ‘litigation’ means a legal action including all proceedings
therein initiated in a Court of law for the enforcement of right or seeking a
remedy. Therefore, lexically the expression “PIL” means the legal action
initiated in a Court of law for the enforcement of Public interest or general
interest in which the public or a class of the community have pecuniary interest
or some interest by which their legal rights or liabilities are affected.”
8. In Paras 60, 61 & 62 of the said Judgment, it was pointed out as follows:
“Be that as it may, it is needless to emphasis that the requirement of locus
standi of a party to a litigation is mandatory, because the legal capacity of the
party to any litigation whether in private or Public action in relation to any
specific remedy sought for has to be primarily ascertained at the threshold.”
9. In Para 96 of the said Judgment, it has further been pointed out as follows:
“While this Court has laid down a chain of notable decisions with all emphasis
at their command about the importance and significance of this newly
developed doctrine of PIL, it has also hastened to sound a red alert and a note
of severe warning that Courts should not allow its process to be abused by a
mere busy body or a meddlesome interloper or wayfarer or officious intervener
without any interest or concern except for personal gain or private profit or
other oblique consideration.”
10. In subsequent paras of the said Judgment, it was observed as follows:
“109. It is thus clear that only a person acting bona fide and having sufficient
interest in the proceeding of PIL will alone have as locus standi and can
approach the Court to wipe out the tears of the poor and needy, suffering from
violation of their fundamental rights, but not a person for personal gain or
private profit or political motive or any oblique consideration. Similarly a
vexatious petition under the colour of PIL, brought before the Court for
vindicating any personal grievance, deserves rejection at the threshold”.
11. It is depressing to note that on account of such trumpery proceedings
initiated before the Courts, innumerable days are wasted, which time otherwise
could have been spent for the disposal of cases of the genuine litigants. Though
we spare no efforts in fostering and developing the laudable concept of PIL and
extending our long arm of sympathy to the poor, the ignorant, the oppressed and
the needy whose fundamental rights are infringed and violated and whose
grievance go unnoticed, un-represented and unheard; yet we cannot avoid but
express our opinion that while genuine litigants with legitimate grievances
relating to Civil matters involving properties worth hundreds of millions of

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January 2021 B. Radhakrishna Menon v. State of Kerala 355
(DB) (Ker.) (S. Manikumar, C.J.)
rupees and Criminal cases in which persons sentenced to death facing gallows
under untold agony and persons sentenced to life imprisonment and kept in
incarceration for long years, persons suffering from undue delay in service
matters-Government or private, persons awaiting the disposal of cases wherein
huge amounts of public revenue or unauthorized collection of tax amounts are
locked up, detenu expecting their release from the detention orders, etc. etc. are
all standing in a long serpentine queue for years with the fond hope of getting
into the Courts and having their grievances redressed, the busy bodies,
meddlesome interlopers, wayfarers or officious interveners having absolutely no
Public interest except for personal gain or private profit either of themselves or
as a proxy of others or for any other extraneous motivation or for glare of
publicity break the queue muffing their faces by wearing the mask of Public
interest litigation and get into the Courts by filing vexatious and frivolous
Petitions and thus criminally waste the valuable time of the Courts and as a result
of which the queue standing outside the doors of the Court never moves, which
piquant situation creates frustration in the minds of the genuine litigants and
resultantly they loose faith in the administration of our judicial system.
12. Public interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind
the beautiful veil of Public interest an ugly private malice, vested interest and/or
publicity seeking is not lurking. It is to be used as an effective weapon in the
armory of law for delivering social justice to the citizens. The attractive brand
name of Public interest litigation should not be used for suspicious products of
mischief. It should be aimed at redressal of genuine public wrong or public
injury and not publicity oriented or founded on personal vendetta. As indicated
above, Court must be careful to see that a body of persons or member of public,
who approaches the Court is acting bona fide and not for personal gain or private
motive or political motivation or other oblique consideration. The Court must not
allow its process to be abused for oblique considerations. Some persons with
vested interest indulge in the pastime of meddling with Judicial process either by
force of habit or from improper motives. Often they are actuated by a desire to
win notoriety or cheap popularity. The petitions of such busy bodies deserve to
be thrown out by rejection at the threshold, and in appropriate cases with
exemplary costs.
13. The Council for Public interest Law set up by the Ford Foundation in USA
defined the “Public interest litigation” in its report of Public interest Law, USA,
1976 as follows:
“Public interest Law is the name that has recently been given to efforts provide
legal representation to previously unrepresented groups and interests. Such
efforts have been undertaken in the recognition that ordinary market place for
legal services fails to provide such services to significant segments of the
population and to significant interests. Such groups and interests include the
proper environmentalists, consumers, racial and ethnic minorities and others.”
14. The Court has to be satisfied about (a) the credentials of the Applicant; (b)
the prima facie correctness or nature of information given by him; (c) the
information being not vague and indefinite. The information should show gravity
and seriousness involved. Court has to strike balance between two conflicting
interests; (i) nobody should be allowed to indulge in wild and reckless

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356 LABOUR LAW NOTES 2021 (1) LLN

allegations besmirching the character of others; and (ii) avoidance of public

mischief and to avoid mischievous Petitions seeking to assail, for oblique
motives, justifiable executive actions. In such case, however, the Court cannot
afford to be liberal. It has to be extremely careful to see that under the guise of
redressing a public grievance, it does not encroach upon the sphere reserved by
the Constitution to the Executive and the Legislature. The Court has to act
ruthlessly while dealing with imposters and busy bodies or meddlesome
interlopers impersonating as public-spirited holy men. They masquerade as
crusaders of justice. They pretend to act in the name of Pro Bono Publico,
though they have no interest of the public or even of their own to protect.
15. Courts must do justice by promotion of good faith, and prevent law from
crafty invasions. Courts must maintain the social balance by interfering where
necessary for the sake of justice and refuse to interfere where it is against the
social interest and public good. (See State of Maharastra v. Prabhu, 1994 (2)
SCC 481; and Andhra Pradesh State Financial Corporation v. M/s.GAR Re-
Rolling Mills and another, AIR 1994 SC 2151. No litigant has a right to
unlimited drought on the Court time and public money in order to get his affairs
settled in the manner as he wishes. Easy access to justice should not be misused
as a licence to file misconceived and frivolous Petitions. [See Buddhi Kota
Subbarao (Dr.) v. K.Parasaran, 1996 (7) JT 265]. Today people rush to Courts
to file cases in profusion under this attractive name of Public interest. They must
inspire confidence in Courts and among the public.
16. As noted supra, a time has come to weed out the Petitions, which though
titled as Public interest litigations are in essence something else. It is shocking to
note that Courts are flooded with large number of so called Public interest
litigations where even a minuscule percentage can legitimately be called as
Public interest litigations. Though the parameters of Public interest litigation
have been indicated by this Court in large number of cases, yet unmindful of the
real intentions and objectives, Courts are entertaining such Petitions and wasting
valuable judicial time which, as noted above, could be otherwise utilized for
disposal of genuine cases. Though in Dr. Duryodhan Sahu and Ors., v. Jitendra
Kumar Mishra and ors., AIR 1999 SC 114, this Court held that in service
matters PILs should not be entertained, the inflow of so- called PILs involving
service matters continues unabated in the Courts and strangely are entertained.
The least the High Courts could do is to throw them out on the basis of the said
decision. The other interesting aspect is that in the PILs, official documents are
being annexed without even indicating as to how the Petitioner came to possess
them. In one case, it was noticed that an interesting answer was given as to its
possession. It was stated that a packet was lying on the road and when out of
curiosity the Petitioner opened it, he found copies of the official documents.
Whenever such frivolous pleas are taken to explain possession, the Court should
do well not only to dismiss the Petitions but also to impose exemplary costs. It
would be desirable for the Courts to filter out the frivolous Petitions and dismiss
them with costs as afore-stated so that the message goes in the right direction
that Petitions filed with oblique motive do not have the approval of the Courts.
19. In State of H.P. v. A Parent of a Student of Medical College, Simla and ors.,
1985 (3) SCC 169, it has been said that Public interest litigation is a weapon
which has to be used with great care and circumspection.

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January 2021 B. Radhakrishna Menon v. State of Kerala 357
(DB) (Ker.) (S. Manikumar, C.J.)
20. Khalid, J. in his separate supplementing Judgment in Sachidanand Pandey v.
State of W.B., 1987 (2) SCC 295, 331 said:
“Today public spirited litigants rush to Courts to file cases in profusion under
this attractive name. They must inspire confidence in courts and among the
public. They must be above suspicion. (SCC p. 331, Para 46) *** Public
interest litigation has now come to stay. But one is led to think that it poses a
threat to Courts and public alike. Such cases are now filed without any rhyme
or reason. It is, therefore, necessary to lay down clear Guidelines and to outline
the correct parameters for entertainment of such Petitions. If courts do not
restrict the free flow of such cases in the name of Public interest litigations, the
traditional litigation will suffer and the Courts of law, instead of dispensing
justice, will have to take upon themselves administrative and executive
functions. (SCC p.334, Para 59) *** I will be second to none in extending help
when such help is required. But this does not mean that the doors of this Court
are always open for anyone to walk in. It is necessary to have some self-
imposed restraint on Public interest litigants.” (SCC p.335, Para 61)
21. Sabyasachi Mukharji, J. (as he then was) speaking for the Bench in
Ramsharan Autyanuprasi v. Union of India, 1989 Supp (1) SCC 251, was in full
Agreement with the view expressed by Khalid, J. in Sachidanand Pandey’s case
(supra) and added that ‘Public interest litigation’ is an instrument of the
administration of justice to be used properly in proper cases. [See also separate
Judgment by Pathak, J. (as he then was) in Bandhua Mukti Morcha v. Union of
India, 1984 (3) SCC 161].
22. Sarkaria, J. in Jasbhai Motibhai Desai v. Roshan Kumar, 1976 (1) SCC 671,
expressed his view that the application of the busybody should be rejected at the
threshold in the following terms: (SCC p. 683, Para 37) “It will be seen that in
the context of locus standi to apply for a writ of certiorari, an Applicant may
ordinarily fall in any of these categories : (i) ‘person aggrieved’; (ii) ‘stranger’;
(iii) busybody or meddlesome interloper. Persons in the last category are easily
distinguishable from those coming under the first two categories. Such persons
interfere in things which do not concern them. They masquerade as crusaders for
justice. They pretend to act in the name of pro bono publico, though they have no
interest of the public or even of their own to protect. They indulge in the pastime
of meddling with the Judicial process either by force of habit or from improper
motives. Often, they are actuated by a desire to win notoriety or cheap
popularity; while the ulterior intent of some Applicants in this category, may be
no more than spoking the wheels of administration. The High Court should do
well to reject the applications of such busybodies at the threshold.”
23. Krishna Iyer, J. in Fertilizer Corpn. Kamgar Union (Regd.) v. Union of
India, 1981 (1) SCC 568, in stronger terms stated: (SCC p.589, Para 48) “48. If
a citizen is no more than a wayfarer or officious intervener without any interest
or concern beyond what belongs to any one of the 660 million people of this
country, the door of the court will not be ajar for him.”
24. In Chhetriya Pardushan Mukti Sangharash Samiti v. State of U.P., 1990 (4)
SCC 449, Sabyasachi Mukharji, C.J. observed: (SCC p.452, Para 8) “While it is
the duty of this Court to enforce fundamental rights, it is also the duty of this
Court to ensure that this weapon under Article 32 should not be misused or

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permitted to be misused creating a bottleneck in the superior Court preventing

other genuine violation of fundamental rights being considered by the Court.”
25. In Union Carbid Corporation v. Union of India, 1991 (4) SCC 584, 610],
Ranganath Mishra, C.J. in his separate Judgment while concurring with the
conclusions of the majority Judgment has said thus: (SCC p.610, Para 21) “I am
prepared to assume, nay, concede, that public activists should also be permitted
to espouse the cause of the poor citizens but there must be a limit set to such
activity and nothing perhaps should be done which would affect the dignity of
the Court and bring down the serviceability of the institution to the people at
large. Those who are acquainted with jurisprudence and enjoy social privilege as
men educated in law owe an obligation to the community of educating it
properly and allowing the Judicial process to continue unsoiled.”
26. In Subhash Kumar v. State of Bihar, 1991 (1) SCC 598, it was observed as
follows:
“Public interest litigation cannot be invoked by a person or body of persons to
satisfy his or its personal grudge and enmity. If such Petitions under Article 32,
are entertained it would amount to abuse of process of the Court, preventing
speedy remedy to other genuine Petitioners from this Court. Personal interest
cannot be enforced through the process of this Court under Article 32 of the
Constitution in the garb of a Public interest litigation. Public interest litigation
contemplates legal proceeding for vindication or enforcement of fundamental
rights of a group of persons or community which are not able to enforce their
fundamental rights on account of their incapacity, poverty or ignorance of law.
A person invoking the jurisdiction of this Court under Article 32 must
approach this Court for the vindication of the fundamental rights of affected
persons and not for the purpose of vindication of his personal grudge or
enmity. It is the duty of this Court to discourage such Petitions and to ensure
that the course of justice is not obstructed or polluted by unscrupulous litigants
by invoking the extraordinary jurisdiction of this Court for personal matters
under the garb of the Public interest litigation”.
27. In the words of Bhagwati, J. (as he then was) “the Courts must be careful in
entertaining Public interest litigations” or in the words of Sarkaria, J. “the
applications of the busybodies should be rejected at the threshold itself” and as
Krishna Iyer, J. has pointed out, “the doors of the Courts should not be ajar for
such vexatious litigants”.”
(vi) In Dr. B. Singh v. Union of India, 2004 (3) SCC 363, the Hon’ble
Supreme Court held as follows:
“Public interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind
the beautiful veil of Public interest an ugly private malice, vested interest and/or
publicity-seeking is not lurking. It is to be used as an effective weapon in the
armoury of law for delivering social justice to the citizens. The attractive brand
name of Public interest litigation should not be allowed to be used for suspicious
products of mischief. It should be aimed at redressal of genuine public wrong or
public injury and not publicity-oriented or founded on personal vendetta. As
indicated above, Courts must be careful to see that a body of persons or member

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(DB) (Ker.) (S. Manikumar, C.J.)
of public, who approaches the Court is acting bona fide and not for personal gain
or private motive or political motivation or other oblique consideration. The
Court must not allow its process to be abused for oblique considerations by
masked phantoms who monitor at times from behind. Some persons with vested
interest indulge in the pastime of meddling with Judicial process either by force
of habit or from improper motives and try to bargain for a good deal as well to
enrich themselves. Often they are actuated by a desire to win notoriety or cheap
popularity. The Petitions of such busybodies deserve to be thrown out by
rejection at the threshold, and in appropriate cases with exemplary costs.”
(vii) On the aspect of a Public interest Litigation purely based on
Newspaper report, in Vikas Vashishth v. Allahabad High Court, 2004
(13) SCC 485, the Hon’ble Supreme Court held as follows:
“At the very outset, we put it to the Petitioner that a bare perusal of the Petition
shows that it is based entirely on Newspaper Reports and asked him whether
before filing the Petition he has taken care to verify the facts personally. His
answer is in the negative. In the Writ Petition all the 21 High Courts have been
included as Respondents and Union of India has also been impleaded as the 22nd
Respondent. We asked the Petitioner what has provoked him to implead all the
High Courts as Respondents and he states that it is his apprehension that similar
incidents may occur in other High Courts though there is no factual foundation
for such appreciation.
5. After affording the full opportunity of hearing, we are satisfied that what
purports to have been filed as a Public interest litigation is nothing more than a
“publicity interest litigation”. It is writ large that it has been filed without any
effort at verifying the facts by the Petitioner personally.”
(viii) In R & M. Trust v. Koramangala Residents Vigilance Group, 2005
(3) SCC 91, the Hon’ble Apex Court, at Paragraphs 23 & 24, observed as
follows:
“23. Next question is whether such Public interest Litigation should at all be
entertained & laches thereon. This sacrosanct jurisdiction of Public interest
Litigation should be invoked very sparingly and in favour of vigilant litigant and
not for the persons, who invoke this jurisdiction for the sake of publicity or for
the purpose of serving their private ends.
24. Public interest Litigation is no doubt a very useful handle for redressing the
grievances of the people but unfortunately lately it has been abused by some
interested persons and it has brought very bad name. Courts should be very very
slow in entertaining Petitions involving Public interest in a very rare cases where
public at large stand to suffer. This jurisdiction is meant for the purpose of
coming to the rescue of the down trodden and not for the purpose of serving
private ends. It has now become common for unscrupulous people to serve their
private ends and jeopardize the rights of innocent people so as to wreak
vengeance for their personal ends. This has become very handy to the developers
and in matters of Public Contracts. In order to serve their professional rivalry
they utilize the service of the innocent people or organization in filing Public
interest litigation. The Courts are sometimes persuaded to issue certain directions
without understanding implication and giving a handle in the hands of the

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authorities to misuse it. Therefore, the Courts should not exercise this
jurisdiction lightly but should exercise in a very rare and few cases involving
Public interest of large number of people, who cannot afford litigation and are
made to suffer at the hands of the authorities.”
(ix) In Gurpal Singh v. State of Punjab, 2005 (3) LLN 110 (SC) : 2005
(5) SCC 136, the Hon’ble Supreme Court, while considering the scope of
a Petition styled as a Public interest litigation, held as follows:
“5. The scope of entertaining a Petition styled as a Public interest litigation, locus
standi of the Petitioner particularly in matters involving service of an Employee
has been examined by this Court in various cases. The Court has to be satisfied
about (a) the credentials of the Applicant; (b) the prima facie correctness or nature
of information given by him; (c) the information being not vague and indefinite.
The information should show gravity and seriousness involved. Court has to strike
balance between two conflicting interests; (i) nobody should be allowed to indulge
in wild and reckless allegations besmirching the character of others; and (ii)
avoidance of public mischief and to avoid mischievous petitions seeking to assail,
for oblique motives, justifiable executive actions. In such case, however, the Court
cannot afford to be liberal. It has to be extremely careful to see that under the guise
of redressing a public grievance, it does not encroach upon the sphere reserved by
the Constitution to the Executive and the Legislature. The Court has to act
ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers
impersonating as public-spirited holy men. They masquerade as crusaders of
justice. They pretend to act in the name of Pro Bono Publico, though they have no
interest of the public or even of their own to protect.
6. .....
7. As noted supra, a time has come to weed out the Petitions, which though titled
as Public interest litigations are in essence something else. It is shocking to note
that Courts are flooded with large number of so called Public interest litigations
where even a minuscule percentage can legitimately be called as Public interest
litigations. Though the parameters of Public interest litigation have been
indicated by this Court in large number of cases, yet unmindful of the real
intentions and objectives, High Courts are entertaining such Petitions and
wasting valuable judicial time which, as noted above, could be otherwise utilized
for disposal of genuine cases. Though in Dr. Duryodhan Sahu and ors. v.
Jitendra Kumar Mishra and ors., AIR 1999 SC 114, this Court held that in
service matters PILs should not be entertained, the inflow of so-called PILs
involving service matters continues unabated in the Courts and strangely are
entertained. The least the High Courts could do is to throw them out on the basis
of the said decision. The other interesting aspect is that in the PILs, official
documents are being annexed without even indicating as to how the Petitioner
came to possess them. In one case, it was noticed that an interesting answer was
given as to its possession. It was stated that a packet was lying on the road and
when out of curiosity the Petitioner opened it, he found copies of the official
documents. Whenever such frivolous pleas are taken to explain possession, the
Court should do well not only to dismiss the petitions but also to impose
exemplary costs. It would be desirable for the Courts to filter out the frivolous
Petitions and dismiss them with costs as afore-stated so that the message goes in

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January 2021 B. Radhakrishna Menon v. State of Kerala 361
(DB) (Ker.) (S. Manikumar, C.J.)
the right direction that Petitions filed with oblique motive do not have the
approval of the Courts.
8. ......
9. It is depressing to note that on account of such trumpery proceedings initiated
before the Courts, innumerable days are wasted, which time otherwise could have
been spent for the disposal of cases of the genuine litigants. Though we spare no
efforts in fostering and developing the laudable concept of PIL and extending our
long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose
fundamental rights are infringed and violated and whose grievance go unnoticed, un-
represented and unheard; yet we cannot avoid but express our opinion that while
genuine litigants with legitimate grievances relating to Civil matters involving
properties worth hundreds of millions of rupees and substantial rights and Criminal
cases in which persons sentenced to death facing gallows under untold agony and
persons sentenced to life imprisonment and kept in incarceration for long years,
persons suffering from undue delay in service matters - Government or private,
persons awaiting the disposal of tax cases wherein huge amounts of public revenue
or unauthorized collection of tax amounts are locked up, detenu expecting their
release from the detention orders etc. etc. are all standing in a long serpentine queue
for years with the fond hope of getting into the Courts and having their grievances
redressed, the busy bodies, meddlesome interlopers, wayfarers or officious
interveners having absolutely no real Public interest except for personal gain or
private profit either of themselves or as a proxy of others or for any other extraneous
motivation or for glare of publicity break the queue muffing their faces by wearing
the mask of Public interest litigation and get into the Courts by filing vexatious and
frivolous Petitions of luxury litigants who have nothing to loose but trying to gain for
nothing and thus criminally waste the valuable time of the Courts and as a result of
which the queue standing outside the doors of the court never moves, which piquant
situation creates frustration in the minds of the genuine litigants.
10. Public interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind
the beautiful veil of Public interest an ugly private malice, vested interest and/or
publicity seeking is not lurking. It is to be used as an effective weapon in the
armory of law for delivering social justice to the citizens. The attractive brand
name of Public interest litigation should not be allowed to be used for suspicious
products of mischief. It should be aimed at redressal of genuine public wrong or
public injury and not publicity oriented or founded on personal vendetta. As
indicated above, Court must be careful to see that a body of persons or member
of public, who approaches the Court is acting bona fide and not for personal gain
or private motive or political motivation or other oblique consideration. The
Court must not allow its process to be abused for oblique considerations by
masked phantoms who monitor at times from behind. Some persons with vested
interest indulge in the pastime of meddling with Judicial process either by force
of habit or from improper motives and try to bargain for a good deal as well to
enrich themselves. Often they are actuated by a desire to win notoriety or cheap
popularity. The Petitions of such busy bodies deserve to be thrown out by
rejection at the threshold, and in appropriate cases with exemplary costs.”
(x) In Rohit Pandey v. Union of India, 2005 (13) SCC 702, Hon’ble
Apex Court held as follows:

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“1. This Petition purporting to be in Public interest has been filed by a member of
the legal fraternity seeking directions against the Respondents to hand over the
investigation of the case pertaining to recovery of light machine gun, which is said
to have been stolen from the army according to reports published in two
Newspapers, to the Central Bureau of Investigation for fair investigation to ensure
that the real culprits who are behind such theft of army arms and ammunition
endangering the integrity and sovereignty of the country may be brought to book
and action may be taken against them in accordance with law. The only basis for
the Petitioner coming to this Court are two Newspaper Reports dated 25.1.2004,
and the other dated 12.2.2004. This Petition was immediately filed on 16.2.2004
after the aforesaid second Newspaper Report appeared. On enquiry from the
learned Counsel, we have learnt that the Petitioner is a young advocate having
been in practice for a year or two. The Union of India, the State of Uttar Pradesh
and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party
respondents. In the Newspaper Reports, there is no allegation either against the
Union of India or against the Chief Minister.
2. We expect that when such a Petition is filed in Public interest and particularly by
a member of the legal profession, it would be filed with all seriousness and after
doing the necessary homework and enquiry. If the Petitioner is so public-spirited at
such a young age as is so professed, the least one would expect is that an enquiry
would be made from the authorities concerned as to the nature of investigation
which may be going on before filing a petition that the investigation be conducted
by the Central Bureau of Investigation. Admittedly, no such measures were taken
by the Petitioner. There is nothing in the Petition as to what, in fact, prompted the
Petitioner to approach this Court within two-three days of the second publication
dated 12.2.2004, in the Newspaper Amar Ujala. Further, the State of Uttar Pradesh
had filed its Affidavit a year earlier i.e. on 7.10.2004, placing on record the steps
taken against the Accused persons, including the submission of the Charge-sheet
before the appropriate Court. Despite one year having elapsed after the filing of the
Affidavit by the Special Secretary to the Home Department of the Government of
Uttar Pradesh, nothing seems to have been done by the Petitioner. The Petitioner
has not even controverted what is stated in the Affidavit. Ordinarily, we would
have dismissed such a misconceived Petition with exemplary costs but considering
that the Petitioner is a young Advocate, we feel that the ends of justice would be
met and the necessary message conveyed if a token cost of rupees one thousand is
imposed on the Petitioner.”
(xi) In Divisional Manager, Aravali Golf Club and another v. Chander
Hass and another, 2008 (1) LLN 481 (SC) : 2008 (1) SCC 683, in
Paragraphs 17, 19, 20 & 22, the Hon’ble Supreme Court held thus:
“17. Before parting with this case, we would like to make some observations about
the limits of the powers of the judiciary. We are compelled to make these
observations because we are repeatedly coming across cases where Judges are
unjustifiably trying to perform executive or legislative functions. In our opinion this
is clearly unconstitutional. In the name of judicial activism Judges cannot cross their
limits and try to take over functions which belong to another organ of the State.
19. Under our Constitution, the legislature, the executive and the judiciary all
have their own broad spheres of operation. Ordinarily, it is not proper for any of

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January 2021 B. Radhakrishna Menon v. State of Kerala 363
(DB) (Ker.) (S. Manikumar, C.J.)
these three organs of the State to encroach upon the domain of another,
otherwise the delicate balance in the Constitution will be upset, and there will be
a reaction.
20. Judges must know their limits and must not try to run the Government. They
must have modesty and humility, and not behave like emperors. There is broad
separation of powers under the Constitution and each organ of the State - the
legislature, the executive and the judiciary - must have respect for the other and
must not encroach into each other’s domains.
22. In Tata Cellular v. Union of India (vide AIR Para 113 : SCC Para 94), this
Court observed that the modern trend points to judicial restraint in administrative
action. The same view has been taken in a large number of other decisions also,
but it is unfortunate that many Courts are not following these decisions and are
trying to perform legislative or executive functions. In our opinion adjudication
must be done within the system of historically validated restraints and conscious
minimisation of the Judges’ preferences. The Court must not embarrass the
administrative authorities and must realise that administrative authorities have
expertise in the filed of administration while the Court does not. In the words of
Neely VJ (SCC p.681, Para 82).
“82. ... I have very few illusions about my own limitations as a Judge ... I am not
an accountant, electrical engineer, financier, banker, expect Judges intelligently
to review a 5000 page record addressing the intricacies of a public utility
operation.” It is not the function of a Judge to act as a superboard, or with the
zeal of a pedantic schoolmaster substituting its Judgment for that of the
administrator.”
It is not the function of a Judge to act as a superboard, or with the zeal of a
pedantic schoolmaster substituting its Judgment for that of the administrator.”
(xii) In Common Cause (A Regd. Society) v. Union of India, 2008 (5)
SCC 511, Hon’ble Mr. Justice Markandey Katju (as he then was), held as
follows:
“40. The justification given for judicial activism is that the executive and
legislature have failed in performing their functions. Even if this allegations is
true, does it justify the judiciary in taking over the functions of the legislature or
executive ? In our opinion it does not: firstly, because that would be in violation
of the high constitutional principle of separation of powers between the three
organs of the State, and secondly, because the judiciary has neither the expertise
nor the resources for this. If the legislature or executive are not functioning
properly it is for the people to correct the defects by exercising their franchise
properly in the next elections and voting for Candidates, who will fulfill their
expectations, or by other lawful means e.g., peaceful demonstrations and
agitations, but the remedy is surely not by the judiciary in taking over the
functions of the other organs.”
..........
“59. Unfortunately, the truth is that PILs are being entertained by many Courts as
a routine and the result is that the dockets of most of the superior Courts are
flooded with PILs, most of which are frivolous or for which the judiciary has no

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remedy. As stated in Dattaraj Nathuji Thaware v. State of Maharashtra, AIR

2005 SC 540, Public interest litigation has nowadays largely become ‘publicity
interest litigation’, ‘Private interest litigation’, or ‘politics interest litigation’ or
the latest trend ‘paise income litigation’. Much of P.I.L. is really blackmail.
60. Thus, Public interest Litigation which was initially created as a useful
judicial tool to help the poor and weaker section of society, who could not afford
to come to Courts, has, in course of time, largely developed into an
uncontrollable Frankenstein and a nuisance which is threatening to choke the
dockets of the superior Courts obstructing the hearing of the genuine and regular
cases which have been waiting to be taken up for years together.”
In the same Judgment, concurring with the view of his Brother Judge, Hon’ble
Mr. Justice H.K. Sema (as he then was), further added, as follows:
“69. Therefore, whether to entertain the Petition in the form of Public interest
Litigation either represented by public-spirited person; or Private interest
litigation in the guise of Public interest litigation; or publicity interest
litigation; or political interest litigation is to be examined in the facts and
circumstances recited in the Petition itself. I am also of the view that if there is
a buffer zone unoccupied by the legislature or executive which is detrimental to
the Public interest, judiciary must occupy the field to subserve Public interest.
Therefore, each case has to be examined on its own facts.”
(xiii) In Villianur Iyarkkai Padukappu Maiyam v. Union of India, 2009
(7) SCC 561, the Hon’ble Apex Court held thus:
“168. In a democracy, it is the prerogative of each elected Government to follow
its own policy. Often a change in Government may result in the shift in focus or
change in economic policies. Any such change may result in adversely affecting
some vested interests. Unless any illegality is committed in the execution of the
policy or the same is contrary to law or mala fide, a decision bringing about
change cannot per se be interfered with by the Court.
169. It is neither within the domain of the Courts nor the scope of Judicial
Review to embark upon an enquiry as to whether a particular Public policy is
wise or whether better Public policy can be evolved. Nor are the Courts inclined
to strike down a policy at the behest of a Petitioner merely because it has been
urged that a different policy would have been fairer or wiser or more scientific or
more logical. Wisdom and advisability of economic policy are ordinarily not
amenable to Judicial Review. In matters relating to economic issues the
Government has, while taking a decision, right to “trial and error” as long as
both trial and error are bona fide and within the limits of the authority. For
testing the correctness of a policy, the appropriate forum is Parliament and not
the Courts.
170. Normally, there is always a presumption that the Governmental action is
reasonable and in Public interest and it is for the party challenging its validity to
show that it is wanting in reasonableness or is not informed with Public interest.
This burden is a heavy one and it has to be discharged to the satisfaction of the
Court by proper and adequate material. The Court cannot lightly assume that the
action taken by the Government is unreasonable or against Public interest

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January 2021 B. Radhakrishna Menon v. State of Kerala 365
(DB) (Ker.) (S. Manikumar, C.J.)
because there are large number of considerations, which necessarily weigh with
the Government in taking an action.”
(xiv) In State of Uttaranchal v. Balwant Singh Chaufal, 2010 (3) SCC
402, the Hon’ble Apex Court held as follows:
“(1) The Courts must encourage genuine and bona fide PIL and effectively
discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing
with the Public interest litigation, it would be appropriate for each High Court to
properly formulate rules for encouraging the genuine PIL and discouraging the
PIL filed with oblique motives. Consequently, we request that the High Courts
who have not yet framed the rules, should frame the rules within three months.
The Registrar General of each High Court is directed to ensure that a copy of the
rules prepared by the High Court is sent to the Secretary General of this Court
immediately thereafter.
(3) The Courts should prima facie verify the credentials of the Petitioner before
entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the
contents of the Petition before entertaining a PIL.
(5) The Courts should be fully satisfied that Substantial Public interest is
involved before entertaining the Petition.
(6) The Courts should ensure that the Petition which involves larger Public
interest, gravity and urgency must be given priority over other Petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at
redressal of genuine public harm or public injury. The Court should also ensure
that there is no personal gain, private motive or oblique motive behind filing the
Public interest litigation.
(8) The Courts should also ensure that the Petitions filed by busybodies for
extraneous and ulterior motives must be discouraged by imposing exemplary
costs or by adopting similar novel methods to curb frivolous Petitions and the
Petitions filed for extraneous considerations.”
(xv) In Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale, 2012
(2) SCC 425, the Hon’ble Supreme Court observed thus:
“57. In the light of the above, we shall first consider whether the High Court
committed an error by entertaining the Writ Petition filed by Subhash Rahangdale
as Public interest litigation. This Court has, time and again, laid down guiding
principles for entertaining Petitions filed in Public interest. However, for the
purpose of deciding the Appellants’ objection it is not necessary to advert to the
plethora of precedents on the subject because in State of Uttaranchal v. Balwant
Singh Chaufal, 2010 (3) SCC 402, a Two-Judge Bench discussed the development
of law relating to Public interest litigation and reiterated that before entertaining
such Petitions, the Court must feel satisfied that the Petitioner has genuinely come
forward to espouse public cause and his litigious venture is not guided by any
ulterior motive or is not a publicity gimmick.

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58. In Paragraphs 96 to 104, the Bench discussed Phase-III of the Public interest
litigation in the context of transparency and probity in governance, referred to
the Judgments in Vineet Narain v. Union of India, 1998 (1) SCC 226; Centre for
Public interest Litigation v. Union of India, 2003 (7) SCC 532; Rajiv Ranjan
Singh “Lalan” (VIII) v. Union of India, 2006 (6) SCC 613; M.C. Mehta v. Union
of India, 2008 (1) SCC 407, and observed:
“These are some of the cases where the Supreme Court and the High Courts
broadened the scope of Public interest litigation and also entertained Petitions to
ensure that in governance of the State, there is transparency and no extraneous
considerations are taken into consideration except the Public interest. These cases
regarding probity in governance or corruption in public life dealt with by the
Courts can be placed in the third phase of Public interest litigation.”
59. Reference also deserves to be made to the Judgment of the Three-Judge Bench
in Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi, 1987 (1) SCC 227,
in which a new dimension was given to the power of the Superior Courts to make
investigation into the issues of public importance even though the Petitioner may
have moved the Court for vindication of a Private interest. In that case the High
Court had entertained a Writ Petition filed by Assistant Medical Officer of K.E.M.
Hospital, Bombay questioning the assessment of answer sheets of the Post
Graduate Medical Examinations held by the Bombay University in October 1985.
He alleged malpractices in the evaluation of the answer sheets of the daughter of
the Appellant who, at the relevant time, was Chief Minister of the State. The
learned Single Judge held that altering and tampering of the grade sheets was done
by Dr. Rawal at the behest of the Chief Minister. The Division Bench affirmed the
order of the learned Single Judge with some modification.
60. While rejecting the objection raised on behalf of the Appellant that the Writ
Petition filed by the Respondent cannot be treated as a Petition filed in Public
interest, this Court observed:
“The allegations made in the Petition disclose a lamentable state of affairs in
one of the premier universities of India. The Petitioner might have moved in
his Private interest but enquiry into the conduct of the examiners of the
Bombay University in one of the highest medical degrees was a matter of
Public interest. Such state of affairs having been brought to the notice of the
Court, it was the duty of the Court to the public that the truth and the validity of
the allegations made be inquired into. It was in furtherance of Public interest
that an enquiry into the state of affairs of public institution becomes necessary
and private litigation assumes the character of Public interest litigation and
such an enquiry cannot be avoided if it is necessary and essential for the
administration of justice.” (emphasis supplied)
(xvi) The Hon’ble Supreme Court in Kishore Samrite v. State of Uttar
Pradesh, 2013 (2) SCC 398, once again laid down the principles governing
obligations of the litigants while approaching the Court and the
consequences for abuse of process of law while filing the Public interest
Litigation.
(xvii) In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and
others, 2013 (4) SCC 465, the Hon’ble Supreme Court held that in a

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January 2021 B. Radhakrishna Menon v. State of Kerala 367
(DB) (Ker.) (S. Manikumar, C.J.)
Public interest litigation, the Court must ensure that there is an element of
genuine Public interest is involved.
(xviii) In State of Jaipur Shahar Hindu Vikas Samiti v. State of
Rajasthan and others, 2014 (5) SCC 530, the Hon’ble Supreme Court
held as follows:
“47. The scope of Public interest litigation is very limited, particularly, in the matter
of religious institutions. It is always better not to entertain this type of Public interest
litigations simply on the basis of Affidavits of the parties. The Public Trusts and
Religious Institutions are governed by particular legislation which provide for a
proper mechanism for adjudication of disputes relating to the properties of the Trust
and the Management thereof. It is not proper for the Court to entertain such litigation
and pass Orders. It is also needless to mention that the forums cannot be misused by
the rival groups in the guise of Public interest litigation.
48. We feel that it is apt to quote the views expressed by this Court in
Guruvayoor Devaswom Managing Committee, 2003 (7) SCC 546, wherein this
Court observed: (SCC pp. 574- 75 & 578, Paras 60, 64 & 76) “60. It is possible
to contend that the Hindus in general and the devotees visiting the Temple in
particular are interested in proper Management of the Temple at the hands of the
statutory functionaries. That may be so but the Act is a self-contained code.
Duties and functions are prescribed in the Act and the Rules framed thereunder.
Forums have been created thereunder for ventilation of the grievances of the
affected persons. Ordinarily, therefore, such forums should be moved at the first
instance. The State should be asked to look into the grievances of the aggrieved
devotees, both as parens patriae as also in discharge of its statutory duties.
“… … …
64. The Court should be circumspect in entertaining such Public interest
litigation for another reason. There may be dispute amongst the devotees as to
what practices in should be followed by the Temple Authorities. There may be
dispute as regards the rites and rituals to be performed in the Temple or
omission thereof. Any decision in favour of one sector of the people may hurt
the sentiments of the other. The Courts normally, thus, at the first instance
would not enter into such disputed arena, particularly, when by reason thereof
the fundamental right of a group of devotees under Articles 25 & 26 may be
infringed. Like any other wing of the State, the Courts also while passing an
order should ensure that the fundamental rights of a group of citizens under
Articles 25 & 26 are not infringed. Such care and caution on the part of the
High Court would be a welcome step.
… … …
76. When the administration of the Temple is within its control and it exercises
the said power in terms of a statute, the State, it is expected, normally would
itself probe into the alleged irregularities. If the State through its machinery as
provided for in one Act can arrive at the requisite finding of fact for the
purpose of remedying the defects, it may not find it necessary to take recourse
to the remedies provided for in another statute. It is trite that recourse to a
provision to another statute may be resorted to when the State finds that its
powers under the Act governing the field are inadequate. The High Courts and
the Supreme Court would not ordinarily issue a writ of mandamus directing the

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368 LABOUR LAW NOTES 2021 (1) LLN

State to carry out its statutory functions in a particular manner. Normally, the
Courts would ask the State to perform its statutory functions, if necessary
within a time-frame and undoubtedly, as and when an order is passed by the
State in exercise of its power under the statute, it will examine the correctness
or legality thereof by way of Judicial Review.”
49. The concept of Public interest litigation is a phenomenon which is evolved to
bring justice to the reach of people, who are handicapped by ignorance, indigence,
illiteracy and other downtrodden people. Through the Public interest litigation, the
cause of several people, who are not able to approach the Court is espoused. In the
guise of Public interest litigation, we are coming across several cases where it is
exploited for the benefit of certain individuals. The Courts have to be very cautious
and careful while entertaining Public interest litigation. The judiciary should deal
with the misuse of Public interest litigation with iron hand. If the Public interest
litigation is permitted to be misused the very purpose for which it is conceived,
namely, to come to the rescue of the poor and downtrodden will be defeated. The
Courts should discourage the unjustified litigants at the initial stage itself and the
person who misuses the forum should be made accountable for it. In the realm of
Public interest litigation, the Courts while protecting the larger Public interest
involved, should at the same time have to look at the effective way in which the
relief can be granted to the people whose rights are adversely affected or are at
stake. When their interest can be protected and the controversy or the dispute can
be adjudicated by a mechanism created under a particular statute, the parties should
be relegated to the appropriate forum instead of entertaining the Writ Petition filed
as Public interest litigation.”
(xix) In Tehseen Poonawalla v. Union of India, 2018 (6) SCC 72, the
Hon’ble Supreme Court, at Paragraphs 96 to 98, held as follows:
“96. Public interest litigation has developed as a powerful tool to espouse the
cause of the marginalised and oppressed. Indeed, that was the foundation on
which Public interest jurisdiction was judicially recognised in situations such as
those in Bandhua Mukti Morcha v. Union of India, 1984 (3) SCC 161 : 1984
SCC (L&S) 389. Persons, who were unable to seek access to the Judicial process
by reason of their poverty, ignorance or illiteracy are faced with a deprivation of
fundamental human rights. Bonded labour and undertrials (among others) belong
to that category. The hallmark of a Public interest Petition is that a citizen may
approach the Court to ventilate the grievance of a person or class of persons, who
are unable to pursue their rights. Public interest litigation has been entertained by
relaxing the rules of standing. The essential aspect of the procedure is that the
person, who moves the Court has no personal interest in the outcome of the
proceedings apart from a general standing as a citizen before the Court. This
ensures the objectivity of those, who pursue the grievance before the Court.
Environmental jurisprudence has developed around the rubric of Public interest
Petitions. Environmental concerns affect the present generation and the future.
Principles such as the polluter pays and the Public Trust doctrine have evolved
during the adjudication of Public interest Petitions. Over time, Public interest
litigation has become a powerful instrument to preserve the rule of law and to
ensure the accountability of and transparency within structures of governance.
Public interest litigation is in that sense a valuable instrument and jurisdictional
tool to promote structural due process.

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January 2021 B. Radhakrishna Menon v. State of Kerala 369
(DB) (Ker.) (S. Manikumar, C.J.)
97. Yet over time, it has been realised that this jurisdiction is capable of being
and has been brazenly misutilised by persons with a personal agenda. At one end
of that spectrum are those cases where Public interest Petitions are motivated by
a desire to seek publicity. At the other end of the spectrum are Petitions which
have been instituted at the behest of business or political rivals to settle scores
behind the facade of a Public interest litigation. The true face of the litigant
behind the façade is seldom unravelled. These concerns are indeed reflected in
the Judgment of this Court in State of Uttaranchal v. Balwant Singh Chaufal,
2010 (3) SCC 402 : 2010 (2) SCC (Cri) 81 : 2010 (1) SCC (L&S) 807.
Underlining these concerns, this Court held thus: (SCC p. 453, Para 143) “143.
Unfortunately, of late, it has been noticed that such an important jurisdiction
which has been carefully carved out, created and nurtured with great care and
caution by the Courts, is being blatantly abused by filing some Petitions with
oblique motives. We think time has come when genuine and bona fide Public
interest litigation must be encouraged whereas frivolous Public interest litigation
should be discouraged. In our considered opinion, we have to protect and
preserve this important jurisdiction in the larger interest of the people of this
country but we must take effective steps to prevent and cure its abuse on the
basis of monetary and nonmonetary directions by the Courts.”
98. The misuse of Public interest litigation is a serious matter of concern for the
Judicial process. Both this Court and the High Courts are flooded with litigations
and are burdened by arrears. Frivolous or motivated Petitions, ostensibly invoking
the Public interest detract from the time and attention which Courts must devote to
genuine causes. This Court has a long list of pending cases where the personal
liberty of citizens is involved. Those who await trial or the resolution of Appeals
against orders of conviction have a legitimate expectation of early justice. It is a
travesty of justice for the resources of the legal system to be consumed by an
avalanche of misdirected Petitions purportedly filed in the Public interest which,
upon due scrutiny, are found to promote a personal, business or political agenda.
This has spawned an industry of vested interests in litigation. There is a grave
danger that if this state of affairs is allowed to continue, it would seriously denude
the efficacy of the judicial system by detracting from the ability of the Court to
devote its time and resources to cases which legitimately require attention. Worse
still, such Petitions pose a grave danger to the credibility of the Judicial process.
This has the Propensity of endangering the credibility of other institutions and
undermining public faith in democracy and the rule of law. This will happen when
the agency of the Court is utilised to settle extra-judicial scores. Business rivalries
have to be resolved in a competitive market for goods and services. Political
rivalries have to be resolved in the great hall of democracy when the electorate
votes its representatives in and out of office. Courts resolve disputes about legal
rights and entitlements. Courts protect the rule of law. There is a danger that the
Judicial process will be reduced to a charade, if disputes beyond the ken of legal
parameters occupy the judicial space.”
45. Placing reliance on the above decisions, the learned Senior
Government Pleader submitted that a Public interest Writ Petition which
lacks bona fides, lack of particulars satisfying the requirements of a PIL,
deserves to be dismissed with costs. Having regard to decisions considered

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370 LABOUR LAW NOTES 2021 (1) LLN

in Mythri Residents Association’s case (cited supra), it has been

summarised by the journal thus:
“(1) The Courts must encourage genuine and bona fide PIL and effectively
discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing
with the Public interest litigation, it would be appropriate for each High Court to
properly formulate rules for encouraging the genuine PIL and discouraging the
PIL filed with oblique motives. Consequently, we request that the High Courts
who have not yet framed the rules, should frame the rules within three months.
The Registrar General of each High Court is directed to ensure that a copy of the
rules prepared by the High Court is sent to the Secretary General of this Court
immediately thereafter.
(3) The Courts should prima facie verify the credentials of the Petitioner before
entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the
contents of the Petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial Public interest is
involved before entertaining the Petition.
(6) The Courts should ensure that the Petition which involves larger Public
interest, gravity and urgency must be given priority over other Petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at
redressal of genuine public harm or public injury. The Court should also ensure
that there is no personal gain, private motive or oblique motive behind filing the
Public interest litigation.
(8) The Courts should also ensure that the Petitions filed by busybodies for
extraneous and ulterior motives must be discouraged by imposing exemplary
costs or by adopting similar novel methods to curb frivolous Petitions and the
Petitions filed for extraneous considerations.
(9) The misuse of Public interest litigation is a serious matter of concern for the
Judicial process.
(10) Both this Court and the High Courts are flooded with litigations and are
burdened by arrears.
(11) Frivolous or motivated Petitions, ostensibly invoking the Public interest
detract from the time and attention which Courts must devote to genuine causes.
(12) This Court has a long list of pending cases where the personal liberty of
citizens is involved.
(13) Those who await trial or the resolution of Appeals against orders of
conviction have a legitimate expectation of early justice.
(14) It is a travesty of justice for the resources of the legal system to be
consumed by an avalanche of misdirected petitions purportedly filed in the
Public interest which, upon due scrutiny, are found to promote a personal,
business or political agenda.
(15) This has spawned an industry of vested interests in litigation.
(16) There is a grave danger that if this state of affairs is allowed to continue, it
would seriously denude the efficacy of the judicial system by detracting from the

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January 2021 B. Radhakrishna Menon v. State of Kerala 371
(DB) (Ker.) (S. Manikumar, C.J.)
ability of the Court to devote its time and resources to cases which legitimately
require attention.
(17) Worse still, such Petitions pose a grave danger to the credibility of the
Judicial process.
(18) This has the propensity of endangering the credibility of other institutions
and undermining public faith in democracy and the rule of law.
(19) This will happen when the agency of the Court is utilised to settle extra-
judicial scores. Business rivalries have to be resolved in a competitive market for
goods and services.
(20) Political rivalries have to be resolved in the great hall of democracy when
the electorate votes its representatives in and out of office.
(21) Courts resolve disputes about legal rights and entitlements.
(22) Courts protect the rule of law.
(23) There is a danger that the Judicial process will be reduced to a charade, if
disputes beyond the ken of legal parameters occupy the judicial space.
(24) In Bharat Singh and others v. State of Haryana and others, AIR 1988 SC 2181,
the Hon’ble Apex Court held that party raising the point must plead and annex to the
Petition not only the facts but also evidence in proof of the facts. When a point which
is, ostensibly a point of law is required to be substantiated by facts, the party raising
the point, if he is the Writ Petitioner, must plead and prove such facts by evidence
which must appear from the Writ Petition and if he is the respondent, from the
Counter Affidavit. Para 13 of the said decision reads as follows:
“13. As has been already noticed, although the point as to profiteering by the
State was pleaded in the Writ Petitions before the High Court as an abstract
point of law, there was no reference to any material in support thereof nor was
the point argued at the hearing of the Writ Petitions. Before us also, no
particulars and no facts have been given in the Special Leave Petitions or in the
Writ Petitions or in any Affidavit, but the point has been sought to be
substantiated at the time of hearing by referring to certain facts stated in the
said application by HSIDC. In our opinion, when a point which is ostensibly a
point of law is required to be substantiated by facts, the party raising the point,
if he is the Writ Petitioner, must plead and prove such facts by evidence which
must appear from the Writ Petition and if he is the Respondent, from the
Counter-Affidavit. If the facts are not pleaded or the evidence in support of
such facts is not annexed to the Writ Petition or to the Counter, Affidavit, as
the case may be, the Court will not entertain the point. In this context, it will
not be out of place to point out that in this regard there is a distinction between
a pleading under the Code of Civil Procedure and a Writ Petition or a Counter-
Affidavit. While in a pleading, that is, a Plaint or a Written Statement, the facts
and not evidence are required to be pleaded, in a Writ Petition or in the
Counter-Affidavit not only the facts but also the evidence in proof of such facts
have to be pleaded and annexed to it. So, the point that has been raised before
us PG No.1060 by the appellants is not entertainable. But, in spite of that, we
have entertained it to show that it is devoid of any merit.”
46. In the pleadings, on more than one occasion, the Petitioner has stated
that the Commission has refused to act, and quite contrary to the same, has
alleged refusal to act by the Chairperson. As rightly contended by the learned

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372 LABOUR LAW NOTES 2021 (1) LLN

Senior Government Pleader, nowhere in the Writ Petition, the Petitioner has
mentioned the qualifications for the office of a member or Chairperson of the
Kerala Women’s Commission, and whether the 2nd Respondent lacks the
same. Besides, the provisions make it clear that it is the Commission, which is
empowered to act on any Complaint regarding unfair practice.
47. The Petitioner has not furnished any information to the Commission.
The contention that though many Complaints were given, the 2nd
Respondent has not taken action on the same, is not supported with any
materials. Writ Petition has been filed on Newspaper Reports. Though the
Petitioner has contended that he is a social worker, he has not preferred any
information to the Commission. Instead, in his representation, he has alleged
that the 2nd Respondent has not taken any action or refused to act and
therefore, he has submitted the representation.
48. As rightly contended by the learned Senior Government Pleader, if the
Petitioner has made any representation to the 2nd Respondent or furnished
information, he can certainly approach the 1st Respondent for necessary
action. Exhibit-P3 is not a statutory representation. In the light of the decisions
considered by this Court, Writ Petition does not satisfy the parameters for
issuance of a Writ of Quo Warranto. In the absence of any pleading and
proof, the 2nd Respondent cannot be said to be lacking in qualification, for the
office of a Chairperson. Hon’ble Supreme Court has deprecated the practice of
entertaining a Public interest Writ Petition solely on Newspaper Reports.
Therefore, reliance placed on the Newspaper Reports that the 2nd Respondent
has committed breach of Oath of office, cannot be accepted. Even taking it for
granted that there is a breach of Oath of office, in the light of the decisions
considered, it would not be a cause for issuing a Writ of Quo Warranto.
49. Having gone through the material on record, we are of the view that
the instant Public interest Writ Petition has been filed, just for the sake of
seeking a prayer, for issuance of a Writ of Quo Warranto. The Petitioner has
not pleaded or proved that the appointment of 2nd Respondent is contrary to
the statutory provisions. Though, Mr. R. Krishna Raj, learned Counsel for
the Petitioner, pleaded that no costs be imposed, for the reasons stated above
and taking note of the decisions of the Hon’ble Supreme Court, extracted
above, and on the facts and circumstances considered, we are not inclined to
accept the submission of the learned Counsel. Writ Petition deserves to be
dismissed with costs, which we quantify at `10,000 to be paid to the 2nd
Respondent within a period of two weeks from the date of receipt of a
Certificate copy of this Judgment, failing which it is open for the 2nd
Respondent to enforce the same, in accordance with law.
In the light of the above discussion and decisions, Petitioner is not
entitled to the reliefs sought for. Writ Petition is dismissed.
  

Labour Law Notes / January-2021

January 2021 Mangalam Publications (India) Pvt. Ltd. v. Saju George 373
(DB) (Ker.) (A.M. Shaffique, J.)
2021 (1) LLN 373 (DB) (Ker.)
IN THE HIGH COURT OF KERALA
A.M. Shaffique & Gopinath, P., JJ.
W.A. No.964 of 2020
1.12.2020
Mangalam Publications (India) Pvt. Ltd. .....Appellant
Vs.
Saju George .....Respondent
LABOUR LAW — TRANSFER — Justification — Unauthorized
absence — Denial of employment — Abandonment of job — Espousal of
cause by Union — Territorial jurisdiction to decide Reference —
Respondent-Workman employed as Assistant Photographer with
Appellant — Transferred to Mumbai, which was challenged by raising
Industrial Dispute — Transfer found unjustified and he was directed to
be reinstated with 50% Back Wages and again transferred to Delhi —
Disciplinary action initiated for unauthorized absence but action not
continued — Alleging denial of employment, Industrial Dispute raised —
Workman represented by Union — Industrial Tribunal concluded that
there was denial of employment which Order impugned before Single
Judge, who confirmed Order of Industrial Tribunal — On challenge,
held, Workman was member of Union in question, who espoused cause of
Workman from initial stage — Once Reference made at instance of
Union, it is not open to Management to contend at this stage that cause of
Workman not espoused by Union — Issue of territorial jurisdiction
cannot be raised at this late stage — Complaint made before Competent
Authority where Head Office of Appellant functioning pursuant to which
Conciliation proceedings took place — Complaint of denial of
employment, though he was transferred to Delhi, can be raised where
Management has Head Office and need not be at place where Workman
actually worked — Cause of action would arise also where Head Office
located — It is settled law that Writ Court should not interfere in matters
decided by Tribunal on factual consideration of material placed on record
— Tribunal, having considered material arrived at conclusion about
denial of employment — Single Judge also not interfered with said
findings — No perversity found in impugned Orders — Tribunal granted
only 50% Back Wages — A person, who denied employment would be
entitled to continuity in service and Back Wages — No ground to
interfere with such findings — Appeal dismissed. (Paras 5 to 11)
CASES REFERRED
J.H. Jadhav v. Forbes Gokak Ltd., 2005 (1) LLN 1081 (SC) .....................................................5
Management of Hotel Samrat v. Government of NCT, 2007 (2) LLJ 950.................................6

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374 LABOUR LAW NOTES 2021 (1) LLN

Manager, K.V.S.S. Mandawar v. Mukesh Kumar Sharma, 2010 (12) SCC 487........................8
Nandram v. Garware Polyster Limited, 2016 (2) LLN 1 (SC)....................................................8
Oil and Natural Gas Commission v. Oil and Natural Gas Commission Contractual
Workers Union, 2008 (12) SCC 275 ...................................................................................8
Prem Narain v. Swadeshi Cotton Mills, 2016 (2) LLN 303 (SC) ...............................................8
Workmen of Dharampal Premchand (Saughandhi) v. Dharampal Premchand (Saughandhi)
1965 (3) SCR 394................................................................................................................5
V. Krishna Menon, P. Vijayamma, J. Surya & Prinsun Philip, Advocates for Appellant.
Gopakumar R. Thaliyal, Advocate for Respondent.
Finding — W.A. dismissed.
JUDGMENT
A.M. Shaffique, J.
1. This Appeal is filed by the Petitioner in W.P.(C) No.11891/2020
challenging Judgment, dated 17.6.2020 of the learned Single Judge. The
Writ Petition has been filed challenging an Award passed by the Industrial
Tribunal, Idukki in ID No.5/2015. By virtue of the said award, a reference
was answered, inter alia holding that there was denial of employment to the
Workman and the Management was directed to reinstate him in service with
continuity of service and 50% Back Wages.
2. The short facts of the case would disclose that the Workman was
employed as an Assistant Photographer w.e.f. 1.9.1984, was promoted as
Photographer on 9.1.1986 and Chief Photographer on 1.8.2002. He was
transferred to Mumbai on 1.8.2011, which came to be challenged by him by
initiating ID No.28/2012. It was found that his transfer was not justifiable
and he was directed to be reinstated with 50% Back Wages and continuity of
service. Subsequently he was reinstated in service and he was again
transferred to Delhi. He worked at Delhi for some time and thereafter he had
to come back. Disciplinary action was initiated against him alleging
unauthorized absence from duty from 19.6.2014, but the said action was not
continued. Alleging denial of employment, he sought for conciliation and
since the matter was not resolved, the matter was placed before the
Government and the Government as per Order, dated 25.4.2015 referred the
following dispute for adjudication:
“Whether the denial of employment to Sri. Saju George, Chief
Photographer by the Management of Mangalam Publications (India)
Private limited, S.H. Mount P.O., Kottayam is justifiable ? If not, what
relief the Workman is entitled to ?”.
3. The Workman was represented by the union and after taking evidence
in the matter, the Industrial Tribunal having come to the conclusion that
there was denial of employment passed an award which is impugned before

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January 2021 Mangalam Publications (India) Pvt. Ltd. v. Saju George 375
(DB) (Ker.) (A.M. Shaffique, J.)
the learned Single Judge. The learned Single Judge did not interfere with the
Order passed by the Industrial Tribunal.
4. The learned Counsel for the Appellant would submit that the Workman
was reinstated in service and the only question that remains for consideration
is regarding direction to pay 50% of the Back Wages. First of all, it was
contended that the dispute has not been raised at the instance of the union
and no material had been produced to prove that the Kottayam Jilla Shop and
Other Establishment Mazdoor (BMS) has espoused the cause of the
Workman. Secondly, it is contended that the Workman complained that he
was not permitted to join duty in the branch office at Delhi and therefore, the
Industrial Tribunal had no jurisdiction to entertain the above reference.
Thirdly it was contended that this is a case in which the Workman had
abandoned his duty and hence, the Tribunal erred in directing payment of
50% Back Wages.
5. It is true that in the objection a contention was raised that the union had
not espoused the cause of the Workman concerned. According to the
Management, while the Workman was employed in their establishment, he
was not part of the BMS union and therefore the said union had no right to
appear before the Tribunal on behalf of the Workman. But it is relevant to
note that the Workman had produced the membership card to prove that he
was a member of the union. Still the contention urged by the Management is
that a mere membership will not suffice and it has to be proved that the
cause of the Workman had been taken up by the union. Counsel relied upon
a Judgment of the Apex Court in J.H. Jadhav v. Forbes Gokak Ltd., 2005
(1) LLN 1081 (SC) : 2005 (3) SCC 202. In that case, the Apex Court after
referring to the decision in Workmen of Dharampal Premchand
(Saughandhi) v. Dharampal Premchand (Saughandhi) 1965 (3) SCR 394,
held at Paragraphs 5, 7 & 8 as under:
“5. The definition of “Industrial Dispute” in Section 2(k) of the Act shows that
an Industrial Dispute means any dispute or difference between Employers and
Employers, or between Employers and Workmen, or between Workmen and
Workmen, which is connected with the employment or non-employment or the
terms of the employment or with the conditions of labour, of any person. The
definition has been the subject-matter of several decisions of this Court and the
law is well settled. The locus classicus is the decision in Workmen v. Dharampal
Premchand (Saughandhi), 1965 (3) SCR 394 : AIR 1966 SC 182, where it was
held that for the purposes of Section 2(k) it must be shown that:
(1) The dispute is connected with the employment or non-employment of a
Workman.
(2) The dispute between a single Workman and his Employer was sponsored or
espoused by the union of Workmen or by a number of Workmen. The phrase

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376 LABOUR LAW NOTES 2021 (1) LLN

“the union” merely indicates the union to which the Employee belongs even
though it may be a union of a minority of the Workmen.
(3) The establishment had no union of its own and some of the Employees had
joined the union of another establishment belonging to the same industry. In
such a case it would be open to that union to take up the cause of the Workmen
if it is sufficiently representative of those Workmen, despite the fact that such
union was not exclusively of the Workmen working in the establishment
concerned. An illustration of what had been anticipated in Dharampal case,
1965 (3) SCR 394 : AIR 1966 SC 182, is to be found in Workmen v. Indian
Express (P) Ltd., 1969 (1) SCC 228 : AIR 1970 SC 737, where an “outside”
union was held to be sufficiently representative to espouse the cause.”
7. As far as espousal is concerned there is no particular form prescribed to effect
such espousal. Doubtless, the union must normally express itself in the form of a
resolution which should be proved if it is in issue. However, proof of support by
the union may also be available aliunde. It would depend upon the facts of each
case. The Tribunal had addressed its mind to the question, appreciated the
evidence both oral and documentary and found that the Union had espoused the
Appellant’s cause.
8. The Division Bench misapplied the principles of Judicial Review under
Article 226 in interfering with the decision. It was not a question of there being
no evidence of espousal before the Industrial Tribunal. There was evidence
which was considered by the Tribunal in coming to the conclusion that the
Appellant’s cause had been espoused by the Union. The High Court should not
have upset this finding without holding that the conclusion was irrational or
perverse. The conclusion reached by the High Court is therefore unsustainable”.
6. Yet another Judgment relied upon was that of a learned Single Judge of
Delhi High Court in Management of Hotel Samrat v. Government of NCT
and others, 2007 (2) LLJ 950. In the said case, after referring to a few of the
Judgments, it was held at Paragraph 13 as under:
“13. In the instant case, there is no evidence on record of espousal of the dispute
of the Petitioner. There was no evidence that either the aggrieved Workman had
approached the union and asked the union to take up his cause or that union, at
any point of time, or any appreciable number of Employees, had taken up the
cause of the Workman with the Management. If the union had passed a
resolution or appreciable number of Workmen had approached the union and
raised the demand in respect of regularization of the Workmen, it could be said
that there was an espousal of the cause of the Workman. Espousal can be
expressed in many ways. The secretary of the union, who appeared as a Witness
has not uttered a single word that the union or any appreciable number of
Workmen had espoused the cause of the Workmen. He simple stated that he had
met the Management (in his individual capacity). Under these circumstances, it
could not be held that an Industrial Dispute existed between the Employer and
the Workmen to enable the appropriate Government to make an order under
Section 10 of the Industrial Disputes Act for referring it for adjudication to the
Labour Court.”

Labour Law Notes / January-2021

January 2021 Mangalam Publications (India) Pvt. Ltd. v. Saju George 377
(DB) (Ker.) (A.M. Shaffique, J.)
7. None of these Judgments will have application to the factual aspects
involved in the present case. There is no doubt about the fact that the
Workman was a member of the concerned union. According to the
Workman, the cause of the Workman was undertaken by the union even at
the initial stage. Apparently, there was no objection from the side of the
Management during the relevant time. Thereafter, the matter was considered
and ultimately the dispute had been referred for consideration by the
Tribunal. Once a reference had been made at the instance of the union, it is
not open for the Management to contend at this stage of the proceedings that
the cause of the Workman had not been espoused by the union.
8. As far as territorial jurisdiction is concerned, such issues cannot be
raised by the Appellant at this late stage. The Complaint had been given
alleging denial of employment by the union before the Competent Authority
within the jurisdiction, where the Head Office of the Appellant is
functioning and pursuant to which, the conciliation had taken place. It is also
pointed out that the union represented the Workman during conciliation and
since the conciliation failed, the matter was referred to the Government
based on which the dispute had been referred for adjudication to the
Tribunal. When denial of employment is sought by the Workman, though he
was transferred to Delhi, a complaint alleging denial of employment can be
raised where the Management has its Head Office and it need not necessarily
be the place where the Workman was actually working. Cause of action
would arise even at a place where the Head Office of the Management is
situated. Now coming to the merits of the contentions, learned Counsel for
the Workman had placed reliance on the following Judgments:
(i) Malwa Vanaspati and Chemical Co. Ltd. v. Rajendra, 2009 (12) SCC
490;
(ii) Manager, K.V.S.S. Mandawar and another v. Mukesh Kumar
Sharma, 2010 (12) SCC 487;
(iii) Oil and Natural Gas Commission v. Oil and Natural Gas
Commission Contractual Workers Union, 2008 (12) SCC 275;
(iv) Prem Narain v. Swadeshi Cotton Mills, 2016 (2) LLN 303 (SC) :
2017 (11) SCC 325; and
(v) Nandram v. Garware Polyster Limited, 2016 (2) LLN 1 (SC) : 2016
(6) SCC 290.
9. It is settled law that the Writ Court should not interfere in matters
decided by the Tribunal on factual consideration of the materials placed on
record. In the case on hand, the Tribunal had come to the conclusion that

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378 LABOUR LAW NOTES 2021 (1) LLN

there is denial of employment based on the evidence adduced in the matter.

Evidence of the Management Witnesses as well as that of the Workman had
been considered and the Tribunal had arrived at a finding that there was
denial of employment. Facts disclose that the Workman while working at
Delhi was not given the full salary and as a result of which he had to come
back and there was a demand for salary. He also had a Complaint that a
proper camera was not given to him for taking necessary photographs. Being
the Chief Photographer, he was not expected to take photographs with a
camera which would not give sufficient effect to the photographs which he
may take. The Tribunal having considered all these matters have arrived at a
conclusion that there is denial of employment. The learned Single Judge also
did not feel it necessary to interfere with the said finding of fact.
10. Under such circumstances, we will not be justified in again
reconsidering the factual aspects especially when no perversity is found out
in the fact finding by the Tribunal.
11. As already stated, the Workman had been reinstated in service and the
only other question that arises for consideration is regarding payment of
Back Wages. The Tribunal had only directed payment of 50% of Back
Wages. A person, who was denied employment is entitled for continuity in
service and also Back Wages. The Tribunal having taken into consideration
the fact that the Workman was not working in the establishment during the
said period, had granted a reduction of Back Wages taking into account the
factual circumstances and the nature of dispute involved in the matter.
We do not think that we will be justified in interfering with such finding
of fact. In the result, this Writ Appeal is dismissed, however, without any
order as to Costs.
  

Labour Law Notes / January-2021

January 2021 Managing Director, MIMS Hospital v. K. Premaraj 379
(Ker.) (Raja Vijayaraghavan, V., J.)
2021 (1) LLN 379 (Ker.)
IN THE HIGH COURT OF KERALA
Raja Vijayaraghavan, V., J.
W.P.(C) Nos.40786 of 2018 (W) & 2689 of 2019 (I)
11.3.2020
Managing Director, MIMS Hospital (Now Aster Mims Hospital), Govindapuram, Mini
Byepass Road, Kozhikode-16 …..Petitioner
Vs.
K. Premaraj …..Respondent
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Sections 2(s) & 11-A
— ‘Workman’ — Definition — Termination — Fairness of Enquiry —
Powers of Labour Court — Respondent-Workman employed as
Maintenance Supervisor in Engineering Department of Petitioner —
Charge-sheeted alleging misbehaviour, dishonesty and insubordination —
Terminated after Departmental Enquiry — Industrial Dispute raised —
Labour Court held that as Respondent was working in Supervisory
capacity, he is not a Workman within meaning of Section 2(s) of Act —
This led to protracted litigation and in terms of direction of High Court,
Labour Court passed Order holding that termination of Respondent was
not justified and directed Management to pay Compensation in lieu of
Reinstatement to extent of 60% Back Wages from date of Termination till
date of Order — Aggrieved, both parties have challenged order — On
basis of principles laid down in referred matters, it is clear that ‘stage’ at
which Employer has to ask opportunity to adduce evidence for justifying
its action is stage, when Tribunal finally comes to conclusion that
Domestic Enquiry was invalid — In all cases, where Enquiry not held or
has been found defective, Tribunal can call upon Management or
Employer to justify action taken against Employee or to show by fresh
evidence that Termination or Dismissal Order was proper — If
Management does not avail opportunity, it cannot raise any grouse at
subsequent stage — If evidence adduced by Management, validity of
action has to be scrutinized and adjudicated on basis of fresh evidence, as
held in Neeta Kaplish v. P.O, Labour Court, 1999 (1) SCC 517 — In instant
case, Labour Court denied opportunity to Management to lead evidence
to support findings of Enquiry Officer — Said findings of Labour Court
being against law laid down by Apex Court, cannot be sustained —
Matter remitted back to Labour Court for fresh consideration in
accordance with law and principles laid down by Apex Court in referred
decisions — Writ Petitions allowed. (Paras 19 to 24)

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380 LABOUR LAW NOTES 2021 (1) LLN

CASES REFERRED
Anant R. Kulkarni v. Y.P. Education Society, 2013 (6) SCC 515 .....................................11, 24
Bharat Forge Co. Ltd. v. A.B. Zodge, 1996 (1) LLN 797 (SC) ................................................21
Cooper Engineering Ltd. v. P.P. Mundhe, 1975 (2) SCC 661 .................................................18
Delhi Cloth & General Mills Co. v. Ludh Budh Singh, 1972 (1) SCC 595 .......................11, 16
Indian Iron & Steel Co. v. Workmen, AIR 1958 SC 130 .........................................................15
Neeta Kaplish v. Presiding Officer, Labour Court, 1999 (1) LLN 7 (SC) ................................22
Ritz Theater (P) Ltd. v. Workmen, AIR 1963 SC 295..............................................................15
Shankar Chakravarti v. Britannia Biscuit Company Ltd., 1979 (2) LLN 72 (SC) ..............11, 20
State Bank of India v. R.K. Jain, 1972 (4) SCC 304................................................................11
Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd., 1973 (1) LLN 278 (SC) 11, 17, 18
Workmen v. Motipur Sugar Factory (P) Ltd., AIR 1965 SC 1803 ...........................................11
Party-in-Person, P. Vijayamma, V. Krishna Menon & J. Surya, Advocates for
Petitioner.
Pooja Surendran, Government Pleader for Respondent.
Finding — W.P. allowed.
JUDGMENT
1. W.P.(C) No.40786 of 2018 is filed by the Management challenging the
Order, dated 19.9.2018 in I.D. No.26/07 on the file of the Labour Court,
Kozhikode. W.P.(C) No.2689 of 2019 is filed by the Workman challenging
the very same order.
2. In I.D. No.26/07, the dispute referred for adjudication before the
Labour Court by Order, dated 31.7.2007 was “Whether the Termination of
service of Sri K. Premaraj, Maintenance Supervisor, MIMS Hospital,
Govindapuram, Calicut by the Management is justifiable or not ? If not,
what relief, he is entitled to ?
3. By the impugned Order, an Award was passed holding that the
termination of service of the Workman by the Management is not justifiable.
The Management was directed to pay Compensation in lieu of reinstatement
to the Workman to the extent of 60% of Back Wages from the date of his
termination till the date of this order.
4. Before adverting to the rival contentions, it would be appropriate to
mention that this litigation has a checkered history. At various stages the
Workman as well as the Management had approached this Court earlier
assailing the Orders passed by the Labour Court and had secured orders one
way or the other. Those details will have to be stated, albeit briefly, to have a
proper understanding of the issues involved in this long fought litigation.
5. The case records reveals that the Workman used to work as a Maintenance
Supervisor in the Department of Engineering in the MIMS Hospital at Calicut.
He was in charge of the Air Conditioning plant in the hospital. Alleging
misbehavior, dishonesty and insubordination, Disciplinary proceedings were
initiated and an Inquiry Officer was appointed to conduct a Domestic Inquiry.

Labour Law Notes / January-2021

January 2021 Managing Director, MIMS Hospital v. K. Premaraj 381
(Ker.) (Raja Vijayaraghavan, V., J.)
The Workman participated in the Inquiry and on its conclusion, the charges
were held to be proved against him. The service of the Workman was
accordingly terminated accepting the report of the Inquiry Officer.
6. A dispute was raised by the Workman under the Industrial Disputes
Act, 1947 which was referred to the Labor Court by the appropriate
Government. By Order, dated 28.10.2009, the Labour Court came to the
conclusion that the Worker, being a person working in a supervisory post,
will not come within the purview of the term “Workman” under Section 2(s)
of the Industrial Disputes Act, 1947. The said order was challenged by the
Workman by filing W.P.(C) No.28907 of 2009. While the said Writ Petition
was pending before this Court, the Labour Court passed a Final Award on
28.10.2009 upholding the punishment of dismissal from service imposed on
the Workman. The Workman amended the earlier Writ Petition and
challenged the Final Award, dated 28.10.2009 of the Labour Court. The
Management also challenged the Award by filing W.P.(C) No.27808 of 2011
contending that the Labour Court had no jurisdiction to entertain the dispute
as the Workman would not come within the term as defined under Section
2(s) of the Industrial Dispute Act and also that the Court ought to have
considered maintainability of the dispute as a Preliminary issue. By a
common Judgment, dated 1.2.2012 in W.P.(C) No.28907 of 2009 a learned
Single Judge of this Court quashed the Preliminary Order passed by the
Labour Court as well as Final Award, dated 28.10.2009 and the Labour
Court was directed to consider the matter afresh. It was further ordered that
parties should be permitted to lead further evidence as they deem fit. The
Workman preferred W.A. No.465 of 2012 challenging the aforesaid
Judgment. By Judgment, dated 9.3.2012 in W.A. No.465 of 2012, their
lordships of the Division Bench disposed of the Writ Appeals directing the
Labour Court to grant opportunities to both sides to adduce evidence and to
consider the matter afresh within stipulated period. In terms of the directions
issued by the learned Single Judge as well as the learned Division Bench, the
Labour Court passed a fresh Award finding that the Workman cannot be
treated as Workman as defined under Section 2(s) of the Industrial Disputes
Act and that he was not entitled to any relief. The said order was challenged
by the Workman before this Court by filing W.P.(C) No.20287 of 2012. By
Judgment, dated 9.4.2013, a learned Single Judge of this Court allowed the
Writ Petition and the Award was set aside and the matter was remitted back
to the Labour Court for fresh consideration in accordance with law. The said
Judgment was challenged by both the Workman and the Management by
filing separate Writ Appeals which were taken on file as W.A. No.1034 of
2013 by the Workman and W.A. No.1583 of 2013 by the Management.
During the pendency of the Writ Appeals the Labour court passed a fresh
award holding that the Workman is not a Workman as defined under Section
2(s) and holding that he is not entitled to any relief. However, by Judgment,
dated 1.7.2014, in the Writ Appeals filed by the parties, a Division Bench of
this Court held that, though designated as a supervisor, the Workman was

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382 LABOUR LAW NOTES 2021 (1) LLN

indeed a Workman within the meaning of Section 2(s). Holding so, the
matter was remanded back for the purpose of determining the validity of
termination of service of the Workman and the parties were permitted to
adduce any fresh evidence to substantiate their respective contentions.
7. Pursuant to the Order of Demand Exhibit P1-Award was passed by the
Labour Court on 8.7.2016 holding that though reinstatement in service
cannot be ordered, his termination from service was unjustifiable. The
Workman was held entitled to a sum of `2,98,000 as Compensation with
Interest at 6% per annum from the date of dismissal from service till
payment. It was further ordered that the period of Suspension shall be treated
as eligible leave and pay and allowances be granted. The above award was
challenged by the Management as well as the Workman by filing separate
Writ Petitions. By a common Judgment, dated 22.5.2017 in W.P.(C)
No.36300 of 2016 & W.P.(C) No.32325 of 2016, a copy of which is
produced as Exhibit P2, this Court set aside the Award, dated 8.7.2016 and
the matter was remitted back. Paragraph Nos.7 to 9 of the Judgment which
have relevance are extracted below for easy reference:
“7. As afore noted, if an Enquiry is defective, it is possible for the Labour Court
to exercise the original jurisdiction, permitting the Management to adduce
evidence in justification of the termination. To exercise such power, it must be
shown that the Enquiry is vitiated and defective. The Labour Court cannot
exercise the power of original jurisdiction without there being a finding as to the
validity of the Enquiry conducted.
8. In this case, the Labour Court failed in exercising its jurisdiction. The Labour
Court did not enter into any finding as to the validity of the Enquiry conducted
and the termination thereon. Instead, the Labour Court ventured upon to decide
the matter as of an Appellate Authority. The Labour Court examined each of the
charges and came to the conclusion that such charges are not proved. It is,
according to me, is an erroneous approach. The Labour Court has to find whether
the Enquiry was valid or not. In the absence of any finding as to the validity of
Enquiry, the Labour Court could not have reappraised the finding as though it
was exercising the appellate power. As afore noted, the Labour Court could
examine whether the Enquiry was concluded after complying with the Principles
of Natural Justice and whether the findings are in correlation with the evidence
adduced. If both these conditions are satisfied, the Labour Court cannot
substitute the finding of the Enquiry Officer by its own decision. Once it is
satisfied, the Enquiry is proper. The limited power of Labour Court is only to
examine the punishment imposed.
9. In the light of the discussion as above, this Court is of the view that the matter
has to be remitted back again for consideration of validity of termination.
Accordingly, the impugned award is set aside and remanded to the Labour Court,
Kozhikode. Parties are directed to appear before the Labour Court, Kozhikode on
15.6.2017. Thereafter, the Labour Court shall dispose of the case within a period
of three months.”

Labour Law Notes / January-2021

January 2021 Managing Director, MIMS Hospital v. K. Premaraj 383
(Ker.) (Raja Vijayaraghavan, V., J.)
8. The Judgment was taken in appeal by the Workman by preferring W.A.
No.1157 of 2017 and W.A. No.1328 of 2017. By Judgment, dated 12.1.2018,
a copy of which is produced as Ext.P3 in W.P.(C) No.40786 of 18, the
Division Bench of this Court dismissed the Writ Appeals and the Labour
Court was directed to reconsider the issue in the light of the law declared by
the learned Single Judge. The Workman as well as Management were ordered
to appear before the Labour Court and the Labour Court was directed to
expedite the hearing and pass the award in an expeditious manner.
9. In terms of the directions of the Division Bench, the Labour Court
considered the issues and has passed the impugned Order.
10. In Paragraph No.11 of the Award, which is impugned in these
Petitions, the Labour Court has opined that out of the charges levelled
against the Workman charge numbers 4, 6, 7 & 8 are sufficient enough to
show the exit route to the Workman. However, the Labour Court went on to
hold that the charges levelled against the delinquent Workman were not
capable of being understood or defined with sufficient certainty and as such
the charges were vague. The Labour Court rightly noticed the principles laid
down by the Hon’ble Supreme Court that when the Enquiry is found to be
vitiated for violation of Principles of Natural Justice, an opportunity had to
be given to the Management to adduce evidence, if the same is sought for by
the Management at the Preliminary stage. In the case on hand the
Management had sought for such an opportunity at the time of filing their
Claim Statement itself. The Labour Court however proceeded to hold that it
would be nothing but an empty formality and went on to hold that granting
of any opportunity to the Management would not improve its case since the
Enquiry is vitiated for non compliance of the Principles of Natural Justice,
the charges being vague. By concluding as aforesaid, the impugned Award
was passed holding that the termination of the Workman was unjustifiable
and the Management was directed to pay Compensation in lieu of
reinstatement to the Workman to the extent of 60% of Back Wages from the
date of termination till the date of order.
11. Sri V. Krishna Menon, the learned Counsel appearing for
Management, submitted that the Labour Court misdirected itself in coming
to a conclusion that the charges framed against the Workman was vague. It
is contended that the Domestic Enquiry was conducted after affording a full
opportunity to the Workman to contest the proceedings and to defend
himself. He was served with the charge as well as a memo of allegations
containing the statement of facts. Placing reliance on the Judgment of the
Apex Court in Anant R. Kulkarni v. Y.P. Education Society and others,
2013 (6) SCC 515, it was argued that where the Charge-sheet is
accompanied by the Statement of facts and the allegations are not specific in
the Charge-sheet but are crystal clear from the statement of facts, in such a
situation as both constitute the same document it cannot be held that the

Labour Law Notes / January-2021

384 LABOUR LAW NOTES 2021 (1) LLN

charges were not specific, definite and clear and the Enquiry stood vitiated.
The learned Counsel then relied on the principles laid down by the Hon’ble
Supreme Court in Workmen v. Motipur Sugar Factory (P) Ltd., AIR 1965
SC 1803; State Bank of India v. R.K. Jain, 1972 (4) SCC 304; Delhi Cloth
& General Mills Co. v. Ludh Budh Singh, 1972 (1) SCC 595; and
Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd., 1973 (1) LLN
278 (SC) : 1973 (1) SCC 813, it was argued that if the Labour Court hold
that the Domestic Enquiry is vitiated either for non-compliance of Rules of
Natural Justice or for perversity, the Employer has to be granted an
opportunity to adduce evidence if the said opportunity was sought for. In the
case on hand, the Labour Court has concluded that since the charges are
vague, the Enquiry is vitiated by the Principles of Natural Justice and hence
no purpose would be served in granting an opportunity to adduce evidence.
The said approach is erroneous and against all tenets of law contends the
learned Counsel. The learned Counsel would also rely on the Judgment of
the Apex Court in Shankar Chakravarti v. Britannia Biscuit Company Ltd.,
1979 (2) LLN 72 (SC) : 1979 (3) SCC 371, and it was argued that in every
case of Disciplinary action coming before the Court/Tribunal, the
Court/Tribunal as a matter of law must frame Preliminary issue and proceed
to see the validity or otherwise of the Enquiry and then serve a fresh notice
on the Employer by calling him to adduce further evidence to sustain the
charges, if the Employer chooses to do so.
12. Sri K. Premaraj, the Workman, who is the Petitioner in W.P.(C)
No.2689 of 2019 appeared in person and advanced arguments. It is contended
that the directions issued by the Division Bench in W.A. No.1157 of 2017 &
W.A. No.1328 of 2017 were not taken note in its perspective by the Labour
Court while passing the impugned Order. According to Mr. Premaraj, vital
documents were produced by him before the Labour Court and none of the
documents were either considered nor appreciated by the Labour Court. It is
pointed out that this Court in the Writ Petition had directed the Labour Court
to examine the validity of the Enquiry Report and only thereafter consider the
findings of the Enquiry Officer. However, those directions were also not
complied with. It is contended that the Workman was entitled to the entire
Back Wages but on frivolous reasons, the same was denied. It was further
argued that if the termination was found illegal, the Labour Court ought to
have granted a declaration that the Workman was entitled to be reinstated with
full Back Wages. He would also point out various instances of victimization
committed by the Management and it was argued that the documents which
were produced by him substantiated the said fact. However, none of these
aspects were considered while passing the award.
13. I have anxiously considered the submissions. The entire backdrop of
events which have been detailed above would clearly point to the fact that
the Workman and the Management have been locked up in a bitter fight for
more than a decade. At various stages, the dispute has reached this Court.
Deeply disturbed by the long drawn litigation, their lordships of the Division

Labour Law Notes / January-2021

January 2021 Managing Director, MIMS Hospital v. K. Premaraj 385
(Ker.) (Raja Vijayaraghavan, V., J.)
Bench of this Court, while considering W.A. No.1328 of 2017 had offered to
the Worker a sum of `5,00,000 with 6% Interest to somehow bring about a
settlement. However, the Workman, refused to accept the said offer and
demanded that the matter be remanded back for reconsideration in tune with
the directions issued by a Single Judge of this Court in W.P.(C) No.36300 of
2016. This Court has no other option but to analyze the findings of the
Labour Court and determine whether the same is in tune with the law laid
down by the Hon’ble Supreme Court as well as the statutory provisions.
14. The matter referred to the Labour Court for adjudication was as to
whether the termination of service of Workman from the Management
Hospital was justifiable or not and the relief that he was entitled to. In the
instant case, a Domestic Enquiry was conducted and the Enquiry Officer had
come to the conclusion that the charges levelled against the Workman was
proved. The Labour Court after analyzing the evidence came to the conclusion
that the charges which were levelled against the Worker was vague and hence,
it rendered the delinquent incapable of understanding the allegations with
sufficient certainty. Holding so, it was held that the Inquiry held by the
Enquiry Officer is vitiated for non-compliance of the Principles of Natural
Justice. What was argued is that the Labour Court ought to have conducted a
Preliminary Enquiry to ascertain whether the Enquiry was fair and proper and
if it was found that the Enquiry was vitiated on any grounds or by the
Principles of Natural Justice, an opportunity ought to have been granted to the
Management to substantiate the charges by leading evidence. It is also the
contention that the charges would include the Memo of allegations and that it
had to be read together for ascertaining whether the allegations are vague.
15. Section 11-A of the Industrial Disputes Act, 1947 was introduced by
Act 45 of 1971 to confer power on the Labour Court/Tribunal to reappraise
the evidence adduced in the Domestic Enquiry and to grant proper relief to
the Workmen, powers, which the Tribunal did not possess earlier. This
provision was brought into the Statute book pursuant to the Judgment of the
Hon’ble Supreme Court in Indian Iron & Steel Co. v. Workmen, AIR 1958
SC 130, in which case, their Lordships, while considering the Tribunal’s
power to interfere with the Management’s decision to dismiss, discharge or
terminate the services of a Workman, had observed that in cases of dismissal
for misconduct, the Tribunal does not act as a Court of Appeal and substitute
its own Judgment for that of the Management and that the Tribunal will
interfere only when there is want of good faith, victimization, Unfair Labour
Practice, etc. on the part of the Management. Pursuant to incorporation of
Section 11-A in the statute book, the Hon’ble Supreme Court in Ritz Theater
(P) Ltd. v. Workmen, AIR 1963 SC 295, laid down that where the
Management relied upon the Domestic Enquiry in defending its action, it
would be the duty of the Tribunal to first consider the validity of the
Domestic Enquiry and only when it came to the conclusion that the Enquiry
was improper or invalid, it would itself go into the merits of the case and call
upon the parties to lead evidence.

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386 LABOUR LAW NOTES 2021 (1) LLN

16. In Delhi Cloth & General Mills Co. v. Ludh Budh Singh, 1972 (1)
SCC 595, the Apex Court went on to hold that where no Enquiry was
conducted by an Employer or the Enquiry itself was found to be defective,
the Employer shall have to be given a chance to adduce evidence before the
Tribunal for justifying his action provided the Employer asks for the
permission of the Tribunal to adduce fresh evidence to justify its action.
Such request has to be made “while the proceedings are pending” and not
after the proceedings had come to an end. The following propositions were
laid down: (SCC pp.615-17, Para 61)
“(1) If no Domestic Enquiry had been held by the Management, or if the
Management makes it clear that it does not rely upon any Domestic Enquiry that
may have been held by it, it is entitled to straightaway adduce evidence before
the Tribunal justifying its action. The Tribunal is bound to consider that evidence
so adduced before it, on merits, and give a decision thereon. In such a case, it is
not necessary for the Tribunal to consider the validity of the Domestic Enquiry
as the Employer himself does not rely on it.
(2) If a Domestic Enquiry had been held, it is open to the Management to rely
upon the Domestic Enquiry held by it, in the first instance, and alternatively and
without prejudice to its plea that the Enquiry is proper and binding,
simultaneously adduce additional evidence before the Tribunal justifying its
action. In such a case no inference can be drawn, without anything more that the
Management has given up the Enquiry conducted by it.
(3) When the Management relies on the Enquiry conducted by it, and also
simultaneously adduces evidence before the Tribunal, without prejudice to its
plea that the Enquiry proceedings are proper, it is the duty of the Tribunal, in the
first instance, to consider whether the Enquiry proceedings conducted by the
Management are valid and proper. If the Tribunal is satisfied that the Enquiry
proceedings have been held properly and are valid, the question of considering
the evidence adduced before it on merits, no longer survives. It is only when the
Tribunal holds that the Enquiry proceedings have not been properly held, that it
derives jurisdiction to deal with the merits of the dispute and in such a case it has
to consider the evidence adduced before it by the Management and decide the
matter on the basis of such evidence.
(4) When a Domestic Enquiry has been held by the Management and the
Management relies on the same, it is open to the latter to request the Tribunal to
try the validity of the Domestic Enquiry as a Preliminary issue and also ask for
an opportunity to adduce evidence before the Tribunal, if the finding on the
Preliminary issue is against the Management. However elaborate and
cumbersome the procedure may be under such circumstances, it is open to the
Tribunal to deal with, in the first instance, as a Preliminary issue, the validity of
the Domestic Enquiry. If its finding on the Preliminary issue is in favour of the
Management, then no additional evidence need be cited by the Management. But
if the finding on the Preliminary issue is against the Management, the Tribunal
will have to give the Employer an opportunity to cite additional evidence and
also give a similar opportunity to the Employee to lead evidence contra, as the
request to adduce evidence had been made by the Management to the Tribunal
during the course of the proceedings and before the trial has come to an end.

Labour Law Notes / January-2021

January 2021 Managing Director, MIMS Hospital v. K. Premaraj 387
(Ker.) (Raja Vijayaraghavan, V., J.)
When the Preliminary issue is decided against the Management and the latter
leads evidence before the Tribunal, the position, under such circumstances, will
be that the Management is deprived of the benefit of having the finding of the
Domestic Tribunal being accepted as prima facie proof of the alleged
misconduct. On the other hand, the Management will have to prove, by adducing
proper evidence, that the Workman is guilty of misconduct and that the action
taken by it is proper. It will not be just and fair either to the Management or to
the Workman that the Tribunal should refuse to take evidence and thereby ask
the Management to make a further application, after holding a proper Enquiry,
and deprive the Workman of the benefit of the Tribunal itself being satisfied, on
evidence adduced before it, that he was or was not guilty of the alleged
misconduct.
(5) The Management has got a right to attempt to sustain its order by adducing
independent evidence before the Tribunal. But the Management should avail
itself of the said opportunity by making a suitable request to the Tribunal before
the proceedings are closed. If no such opportunity has been availed of or asked
for by the Management before the proceedings are closed, the Employer can
make no grievance that the Tribunal did not provide such an opportunity. The
Tribunal will have before it only the Enquiry proceedings and it has to decide
whether the proceedings have been held properly and the findings recorded
therein are also proper.
(6) If the Employer relies only on the Domestic Enquiry and does not
simultaneously lead additional evidence or ask for an opportunity during the
pendency of the proceedings to adduce such evidence, the duty of the Tribunal is
only to consider the validity of the Domestic Enquiry as well as the finding
recorded therein and decide the matter. If the Tribunal decides that the Domestic
Enquiry has not been held properly, it is not its function to invite suo motu the
Employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which
have come before it either on a reference under Section 10 or by way of an
application under Section 33 of the Act.”
17. These principles were adopted in Workmen v. Firestone Tyre &
Rubber Co. of India (P) Ltd., 1973 (1) LLN 278 (SC) : 1973 (1) SCC 813,
which was decided after the introduction of Section 11-A in the Act.
18. In Cooper Engineering Ltd. v. P.P. Mundhe, 1975 (2) SCC 661, in
which Firestone (supra) was followed, the Apex Court observed:
“In our considered opinion it will be most unnatural and impractical to expect a
party to take a definite stand when a decision of a jurisdictional fact has first to
be reached by the Labour Court prior to embarking upon an Enquiry to decide
the dispute on its merits. The reference involves determination of the larger issue
of discharge or dismissal and not merely whether a correct procedure had been
followed by the Management before passing the order of dismissal.”
The Court further observed: (SCC p. 667, para 22)
“22. We are, therefore, clearly of opinion that when a case of dismissal or
discharge of an Employee is referred for industrial adjudication, the Labour

Labour Law Notes / January-2021

388 LABOUR LAW NOTES 2021 (1) LLN

Court should first decide as a Preliminary issue whether the Domestic Enquiry
has violated the Principles of Natural Justice. When there is no Domestic
Enquiry or defective Enquiry is admitted by the Employer, there will be no
difficulty. But when the matter is in controversy between the parties, that
question must be decided as a Preliminary issue. On that decision being
pronounced, it will be for the Management to decide whether it will adduce any
evidence before the Labour Court. If it chooses not to adduce any evidence, it
will not be thereafter permissible in any proceeding to raise the issue.”
19. The principles laid down above makes it clear that the “stage” at
which the Employer has to ask for an opportunity to adduce evidence for
justifying its action is the stage when the Tribunal finally comes to the
conclusion that the Domestic Enquiry was invalid.
20. In Shankar Chakravarti (supra) the Apex Court had observed that
the right of the Management to adduce additional evidence must be availed
of by it by making proper request for that purpose which may even be
contained in the pleadings or may be made at any time before the
proceedings are closed. The Court observed that if such a request is made in
the pleadings itself, the Tribunal has to give an opportunity to the
Management to lead fresh evidence.
21. In Bharat Forge Co. Ltd. v. A.B. Zodge, 1996 (1) LLN 797 (SC) :
1996 (4) SCC 374, it was laid down that the Labour Court or the Tribunal
can take fresh evidence on merits of the charge if it comes to the conclusion
that the Domestic Enquiry was not properly held and Principles of Natural
Justice were violated.
22. In view of the above, there cannot be any semblance of doubt that in
all cases where Enquiry has not been held or the Enquiry has been found to
be defective, the Tribunal can call upon the Management or the Employer to
justify the action taken against the Workman and to show by fresh evidence
that the Termination or Dismissal Order was proper. If the Management does
not lead any evidence by availing of this opportunity, it cannot raise any
grouse at any subsequent stage that it should have been given that
opportunity, as the Tribunal, in those circumstances, would be justified in
passing an award in favour of the Workman. If, however, the opportunity is
availed of and the evidence is adduced by the Management, the validity of
the action taken by it has to be scrutinised and adjudicated upon on the basis
of such fresh evidence. (See Neeta Kaplish v. Presiding Officer, Labour
Court, 1999 (1) LLN 7 (SC) : 1999 (1) SCC 517). As held in Bharat Forge
Company Ltd. (supra) a Domestic Enquiry may be vitiated either for non
compliance of Rules of Natural Justice or for perversity. Disciplinary action
taken on the basis of a vitiated Enquiry does not stand on a better footing
than a disciplinary action with no Enquiry. The right of the Employer to
adduce evidence in both situations is well recognized.

Labour Law Notes / January-2021

January 2021 Managing Director, MIMS Hospital v. K. Premaraj 389
(Ker.) (Raja Vijayaraghavan, V., J.)
23. In the instant case, the Labour Court has denied the Management an
opportunity to let in evidence to support the findings of the Enquiry Officer
by observing thus:
“17. It is well settled that once the Enquiry is found to be vitiated by the
Principles of Natural Justice, it is open to the Management to prove the charges
by offering evidence afresh and that opportunity had to be given to the
Management to that end also. But it must not be forgotten that the Charge-sheet
is the very foundation of the Disciplinary action. Once the charge is found to be
vague, there is no charge at all to be proved again by adducing evidence afresh.
Admittedly here in this case the charge was found to be vague already and it was
on that premises that the Disciplinary proceedings was found to be vitiated by
the Principles of Natural Justice. If that be so, absolutely there is no charge to be
proved by the Management by adducing evidence afresh and as such the
question of giving opportunity to the Management to prove the charge afresh
does not arise for consideration also.”
24. The said findings being clearly against the law laid down by the
Hon’ble Supreme Court cannot be sustained under law. The same is liable to
be set aside. As held by the Hon’ble Supreme Court in Anant R. Kulkarni
(supra), where the Charge-sheet is accompanied by the Statement of facts,
since both constitute the same documents and both had to be considered
before concluding whether the charges are vague. In that view of the matter,
I remit the matter back to the Labour Court for a fresh consideration in
accordance with law. The principles laid down by the Apex Court in the
decisions referred to above shall be followed while deciding the issues.
These Writ Petitions are allowed.
Appendix of W.P.(C) No.40786 of 2018
Petitioner’s/Exhibits:
Exhibit P1 : Copy of the Award of the Second Respondent in I.D. 26 of 2007
Exhibit P2 : Copy of the Common Judgment, dated 22.5.2017
Exhibit P3 : Copy Of the Common Judgment, dated 12.1.2018
Exhibit P4 : Copy of the Award of the Second Respondent, dated 19.9.2018
  

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390 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 390 (Ker.)

IN THE HIGH COURT OF KERALA
A.M. Badar, J.
W.P.(C) No.17507 of 2016 (K)
15.10.2020
Employees’ Provident Fund Organization, rep. by Assistant Provident Fund,
Commissioner (Legal), Sub-Regional Office, Bhyavishyanidhi Bhavan, P.B. No.1895, Kaloor, Cochin-
682 017 …..Petitioner
Vs.
M.S. Raven Beck Solutions (India) Ltd., “Ravenbeck House”, Chettichira, Subhash
Chandra Bose Road, Vyttila (PO), Kochi-682 019, rep. by Managing Director …..Respondent
EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS
PROVISIONS ACT, 1952 (19 of 1952), Sections 6 & 7-A — Allowances
— Whether included in Basic Wages — Respondent-Establishment
covered under EPF Act — Respondent only contributing fraction of
actual Basic Wages paid to its Employees and major chunk was
treated as contribution payable towards Allowances — Held, Basic
Wages comprises of all emoluments earned by Employee while on duty
or on paid leave — In instant case, Uniform Allowance, Washing
Allowance, Food Allowance and Travelling Allowance paid by
Respondent to all its Employees uniformly — Said Allowances not
paid as incentive — Said Allowances, held, form part of Basic Wages
and liable to be included for assessment and deduction for Provident
Fund — Order of Appellate Tribunal to contrary, erroneous and set
aside — Writ Petition allowed. (Paras 9, 10 & 17)
CASES REFERRED
Bridge & Roof Co. (India) Ltd. v. Union of India, AIR 1963 SC 1474..............................15, 16
Regional Provident Fund Commissioner v. Employees’ Provident Fund Appellate
Tribunal, 2015 (1) KLT SN 28.......................................................................................4, 21
Regional Provident Fund Commissioner (II), West Bengal v. Vivekananda Vidyamandir,
2019 (2) LLN 273 (SC)..................................................................................................2, 16
State of Bihar v. Bipat Gope, 1961 Cr.LJ 829 .....................................................................3, 19
Dr. S. Gopakumaran Nair (SR), S. Prasanth, SC for Petitioner.
Paul Antony Maniamkot & K.K. Sathish, Advocates for Respondent.
Finding — W.P. partly allowed with observations & directions.
JUDGMENT
1. Dated this the 15th day of October 2020 By this Petition, Petitioner,
the Employees Provident Fund Organization, through its, Assistant
Provident Fund Commissioner (legal) is challenging the Order, dated

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January 2021 Employees’ Provident Fund Organization v. 391
M.S. Raven Beck Solutions (India) Ltd. (Ker.) (A.M. Badar, J.)
23.1.2009 (Ext.P4), passed by the Presiding Officer, Employees Provident
Fund Appellate Tribunal under the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 (for the sake of brevity, EPF Act). By
this impugned Order, the Appellate Tribunal has been pleased to quash and
set aside, the Order, dated 6.12.2007 (Ext.P1), passed by the Assistant
Provident Fund Commissioner (Enforcement), Kochi, whereby, the said
Authority, in exercise of the powers under Section 7-A of the EPF Act, has
been pleased to determine an amount of `51,65,660 to be due from the 1st
Respondent-Establishment, towards the Statutory EPF contributions for the
period from 3/2004 to 3/2006.
2. Heard the learned Counsel appearing for the Petitioner, at sufficient
length of time. He drew my attention to the impugned Order passed by the
Appellate Tribunal, so also the Order passed by the Assistant Provident Fund
Commissioner (Ext.P4 & Ext.P1) and argued that the impugned Order is
totally illegal and contrary to the settled Principles of Law and as such,
needs to be quashed and set aside. The learned Counsel for the Petitioner
relied on the Judgment of the Hon’ble Apex Court in the matter of Regional
Provident Fund Commissioner (II), West Bengal and others v.
Vivekananda Vidyamandir and others, 2019 (2) LLN 273 (SC) : 2019 (2)
CTC 302 (SC) : 2019 KHC 6257, and submitted that whatever is payable in
all concerns and is earned by all Permanent Employees is included in Basic
Wages for the purpose of assessing contribution payable to the Provident
Fund under Section 6 of the EPF Act. It is urged that allowances such as
House-Rent Allowance, Uniform allowances, Washing allowance, Traveling
allowances and Food allowances were as such liable to be included in basic
Wages for Assessment and deduction towards Provident Fund contributions.
By drawing my attention to the impugned Order of the Appellate Tribunal, it
is submitted that the learned Appellate Tribunal committed error of law, by
allowing the Appeal, despite holding that intention of Legislature appears to
be to include all emoluments, other than those which are specifically
excluded.
3. By placing reliance on Judgment of Hon’ble Patna High Court in the
matter of State of Bihar v. Bipat Gope and others, 1961 Cr.LJ 829 :
Manu/BH/0064/1961, it is argued that after admission of the Petition for
final hearing, the question of delay, if any cannot be considered by the
Court. The learned Counsel for the Petitioner further argued that the
Petitioner is authorised by the resolution passed by the Provident Fund
Organization, authorizing the Assistant Provident Fund Commissioner
(legal) to institute, file and conduct, all Civil and Criminal proceedings and
therefore, the Petition is maintainable.
4. As against this, the learned Counsel for the Respondent/Employer-
Establishment, vehemently opposed the Petition by contending that the
Petition suffers from inordinate delay and latches and therefore, the same is

Labour Law Notes / January-2021

392 LABOUR LAW NOTES 2021 (1) LLN

not maintainable. By drawing my attention to the provisions of Section 7-

L(4) of the EPF Act, the learned Counsel argued that the Writ Petition Is not
maintainable and the remedy if any, is that of filing of Review Petition
before the Appellate Tribunal. It is further urged that the Petitioner has no
locus standi to file and maintain the Petition in view of the Judgment of the
Hon’ble Division Bench of the Calcutta High Court in the matter of the
Regional Provident Fund Commissioner v. Employees Provident Fund
Appellate Tribunal, 2015 (1) KLT SN 28. It is further urged that the
authority under the Provident Fund Commissioner was duty bound to grant
reasonable opportunity to the Employer to represent his case. As no such
opportunity was granted, the Appellate Tribunal was right in allowing the
Appeal filed by the Employer.
5. I have considered the submissions so advanced and perused the
materials placed before me. The order of the Quasi Judicial Authority is
impugned in this Petition. It needs to be noted that the High Court under
Article 227 can neither review nor re-appreciate the evidence upon which
determination of the Tribunal purports to be based or to correct errors of
fact. The High Court cannot substitute its own decisions if, decisions of
Subordinate Courts or Tribunals is within limits of law. However,
interference is called, when such decisions of the Tribunal results in grave
miscarriage of justice or flagrant violation of law.
6. It hardly needs to mention that the Employees Provident Fund Act is a
beneficial piece of Legislation. If two interpretations are possible, then by
construing such statute, the Court should lean in favour of the interpretation
which is beneficial to the subject under such welfare Legislation. Such
Statute needs construction to ensure that benefit thereof goes to the
Employees. Section 5 of the EPF Act deals with framing of a scheme by the
Central Government for Employees or for any class of Employees as well as
creation of a fund and scheme to be administered by the Central Board of
Trustees constituted under Section 5-A of the Act. The Central Board of
Trustees are required to administer the fund vested in it in such a manner as
may be specified in the scheme. Thus, Employees Provident Fund
Organization has fiduciary duty towards the subject of the Act.
7. The Employer under the EPF Act has a statutory obligation to deduct
the specified percentage of contribution from Employees Salary and make
matching contribution in terms of provisions of Section 6 of the said Act.
The entire amount is thereafter required to be deposited in the fund within 15
days of such collection. Section 6 of the EPF Act speaks about contribution
of specified percentage of basic wages, dearness allowance and retaining
allowance. Section 2(b) of the EPF Act defines the term basic wages thus:
“(b) “Basic Wages” means all emoluments which are earned by an Employee
while on duty or on leave or on holidays with wages in either case in accordance

Labour Law Notes / January-2021

January 2021 Employees’ Provident Fund Organization v. 393
M.S. Raven Beck Solutions (India) Ltd. (Ker.) (A.M. Badar, J.)
with the terms of the contract of employment and which are paid or payable in
cash to him, but does not include—
(i) the cash value of any food concession;
(ii) any dearness allowance (that is to say, all cash payments by whatever name
called paid to an Employee on account of a rise in the cost of living), house-
rent allowance, overtime allowance, bonus commission or any other similar
allowance payable to the Employee in respect of his employment or of work
done in such employment;
(iii) any presents made by the Employer;
8. Section 6 which deals with contributions payable by the Employer to
the fund reads thus:
“6. Contributions and matters which may be provided for in Schemes.— The
contribution which shall be paid by the Employer to the Fund shall be ten per
cent of the Basic Wages, dearness allowance and retaining allowance (if any) for
the time being payable to each of the Employees (whether employed by him
directly or by or through a contractor)], and the Employees’ contribution shall be
equal to the contribution payable by the Employer in respect of him and may, if
any Employee so desires, be an amount exceeding ten per cent of his basic
wages, dearness allowance and retaining allowance (if any), subject to the
condition that the Employer shall not be under an obligation to pay any
contribution over and above his contribution payable under this section]:
[Provided that in its application to any establishment or class of establishments
which the Central Government, after making such inquiry as it deems fit, may,
by Notification in the Official Gazette specify, this section shall be subject to the
modification that for the words “ten per cent.”, at both the places where they
occur, the words “twelve per cent” shall be substituted:]
Provided further that where the amount of any contribution payable under this
Act involves a fraction of a rupees, the Scheme may provide for the rounding off
of such fraction to the nearest rupee, half of a rupee or quarter of a rupee.
Explanation 1 : For the purposes of this [section], dearness allowance shall be
deemed to include also the cash value of any food concession allowed to the
Employee.
Explanation 2 : For the purposes of this section, “retaining allowance” means an
allowance payable for the time being to an Employee of any factory or other
establishment during any period in which the establishment is not working, for
retaining his services.”
9. It is thus clear that the basic wages of an Employee comprises of all
emoluments which are earned by him while on duty or on paid
leaves/holidays.
10. Adverting to the facts of the instant case, it is seen that, the
Respondent-Establishment is undisputedly covered under the EPF Act and
the Enforcement Officer of the Provident Fund Organization found that the
Provident Fund contribution on unrealistic monthly wages of the Employees

Labour Law Notes / January-2021

394 LABOUR LAW NOTES 2021 (1) LLN

was being deposited with the Employees Provident Fund. It was prima facie
found that the Respondent-Establishment was only contributing a fraction of
actual Basic Wages paid to its Employees and a major chunk was being kept
out for the purpose of contribution payable to the Provident Fund by
classifying it into different kind of allowances. Accordingly, the Competent
Officer under the EPF Act initiated the Enquiry under Section 7-A and
Summons came to be issued to the Respondent-Establishment for
determining the outstanding dues of Employees Provident Fund for the
period from March 2004 to March 2006 on the allowances which were not
subjected to any Provident Fund Contribution. The Statement of such
allowances which were not made subjected to any Provident Fund
Contribution towards Employees Provident Fund came to be annexed to the
Summons.
11. In response to the summons for determination of amount due from the
Respondent-Establishment towards contribution to Provident Fund, the
Employer and Authorised Representatives of the Respondent appeared
before the Assistant Provident Fund Commissioner (Enforcement).
Prolonged Enquiry came to be conducted from time to time and even
adjournments as prayed by the Respondent-Employer came to be granted by
the authority. The Respondent/Establishment had put up its stand before the
Assistant Provident Fund Commissioner (Establishment) in following words:
“Due to the heavy competitive nature of security industry and various inherent
problems faced by the organizations like High Labour Turnover, presence of
large number of unorganized security agencies we are operative at a low margin.
We are also facing a problem of bearing the Compensation for any theft, loss or
damages in the worksite. This is causing our company to face serious financial
crisis. But even amidst these problems we are in the process of increasing the
Basic Wages for all new recruits and existing staff. We request you to kindly
consider the information provided and take a favourable decision which would
not further weaken our already deteriorating financial position.”
12. After hearing the Employer/Authorised Representative of the
Respondent-Establishment, the Assistant Provident Fund Commissioner
(Establishment) came to the conclusion that the amount classified as Basic
Wages in each month comes to only 35% of the Gross Wages and the
various allowances put together far exceeds the Basic Wages. The said
authority while passing the order under Section 7-A of the EPF Act has
given the following finding:
“From the above, it is crystal clear to my mind that the classification of the total
wages paid to the Employees in the different so called “Excluded Allowances”
leaving only approximately 1/3rd of the amount to be classed as “Basic Wages”
for each Employee for the purpose of the EPF contribution is nothing but a
subterfuge on the part of the Employer to illegally reduce his statutory EPF
liability by adopting a separate nomenclature for part of the Wages paid to his
Employees while submitting the returns under the EPF Act.”

Labour Law Notes / January-2021

January 2021 Employees’ Provident Fund Organization v. 395
M.S. Raven Beck Solutions (India) Ltd. (Ker.) (A.M. Badar, J.)
13. With these observations, it was held that various so called allowances
classified by the Respondent-Employer are nothing but Basic Wages as
defined under Section 2-B of the EPF Act and the Employer is liable to
make the payment of Employees Provident Fund on these amounts.
Accordingly, the Assistant Commissioner of Provident Fund (Enforcement)
vide Order, dated 6.12.2007 (Ext.P1) determined the amount of `51,65,660
to be due and payable by the Respondent-Establishment towards Statutory
Employees Provident Fund contribution for the for the period from March
2004 to March 2006. It is not disputed by the parties before this Court that
House Rent allowance, Uniform allowance, Washing allowance, Food
allowance and Traveling allowance, as such came to be added to the Basic
Wages by the Assistant Provident Fund Commissioner (Establishment)
while passing the order under Section 7-A of the EPF Act for Assessment
and deduction of Statutory Employees Provident Fund Contribution and that
is how the figure of `51,65,660 came to be arrived at as the amount due from
the Respondent-Establishment towards balance contribution to Provident
Fund payable by it.
14. Feeling aggrieved by this order under Section 7-A of the EPF Act, the
Respondent-Establishment has preferred an Appeal under Section 7I of the
said Act. A perusal of grounds of appeal makes it clear that the Respondent-
Establishment has urged before the Appellate Tribunal that Uniform
allowance, Washing allowance, Food allowance and Traveling allowance etc
is being paid by it to all its Employees uniformly across the board. The
Respondent-Establishment, in its Appeal contended that it has no transport
facility and therefore it pays transport allowance to all its Employees. The
security personnel needs uniform and therefore, uniform allowance is paid to
all Employees. In other words, it was not the contention of the Respondent-
Establishment that allowances such as Uniform allowance, Washing
allowance, Food allowance and Traveling allowance were being paid to only
such Employees, who availed the opportunity of these allowances, linked to
any incentives for getting more output.
15. The Appellate Tribunal heard both sides. The Appellate Tribunal
relied on the Judgment of the Hon’ble Apex Court in the matter of Bridge
and Roof Co. (India) Ltd. v. Union of India, AIR 1963 SC 1474, so also
other Judgments and came to the following conclusion in Paragraph 11 & 12
of the impugned Judgment.
“The intention of the Legislature under the Act is that the contribution to the
fund should be made on Basic Wages, Dearness allowance and Retaining
allowance as defined under Section 2(b) & Section 6 of the Act. The plain
intention of the Legislature appears to be to include all emoluments other than
those, which are specifically excluded. I do not find any warrant to interpret
Section 2(b) of the Act, to include the allowances such as House Rent allowance,
Uniform allowance, Washing allowance, Food allowance, Traveling allowance

Labour Law Notes / January-2021

396 LABOUR LAW NOTES 2021 (1) LLN

and over time allowances under the head of the definition of term “Basic Wages”
in the present Appeal.
In view of the above discussions, the impugned Order suffers from infirmity and
is quashed. The Appeal is allowed. Appeal file be consigned to record room. The
copy of the order be sent to both parties”.
16. At this juncture it is apposite to quote the relevant portion from the
Judgment of the Hon’ble Apex Court in the matter of Vivekananda
Vidyamandir (supra) wherein reliance was placed on Judgment in Bridge &
Roof Co. (India) Ltd. It reads thus:
“9. Basic Wage, under the Act, has been defined as all emoluments paid in cash
to an Employee in accordance with the terms of his contract of employment. But
it carves out certain exceptions which would not fall within the definition of
Basic Wage and which includes dearness allowance apart from other allowances
mentioned therein. But this exclusion of dearness allowances finds inclusion in
Section 6. The test adopted to determine if any payment was to be excluded from
basic wage is that the payment under the scheme must have direct access and
linkage to the payment of such special allowance as not being common to all.
The crucial test is one of universality. The Employer, under the Act, has a
statutory obligation to deduct the specified percentage of the contribution from
the Employee’s Salary and make matching contribution. The entire amount is
then required to be deposited in the fund within 15 days from the date of such
collection. The aforesaid provisions fell for detailed consideration by this Court
in Bridge and Roof (supra) when it was observed as follows:
“7. The main question therefore that falls for decision is as to which of these
two rival contentions is in consonance with Section 2(b). There is no doubt that
“basic wages” as defined therein means all emoluments which are earned by an
Employee while on duty or on leave with Wages in accordance with the terms
of the Contract of employment and which are paid or payable in cash. If there
were no exceptions to this definition, there would have been no difficulty in
holding that production bonus whatever be its nature would be included within
these terms. The difficulty, however, arises because the definition also provides
that certain things will not be included in the term “basic wages”, and these are
contained in three clauses. The first Clause mentions the cash value of any food
concession while the third Clause mentions that presents made by the
Employer. The fact that the exceptions contain even presents made by the
Employer shows that though the definition mentions all emoluments which are
earned in accordance with the terms of the contract of employment, care was
taken to exclude presents which would ordinarily not be earned in accordance
with the terms of the contract of employment. Similarly, though the definition
includes “all emoluments” which are paid or payable in cash, the exception
excludes the cash value of any food concession, which in any case was not
payable in cash. The exceptions therefore do not seem to follow any logical
pattern which would be in consonance with the main definition.
8. Then we come to Clause (ii). It excludes Dearness allowance, House-Rent
allowance, Overtime allowance, Bonus, Commission or any other similar
allowance payable to the Employee in respect of his employment or of work
done in such employment. This exception suggests that even though the main

Labour Law Notes / January-2021

January 2021 Employees’ Provident Fund Organization v. 397
M.S. Raven Beck Solutions (India) Ltd. (Ker.) (A.M. Badar, J.)
part of the definition includes all emoluments which are earned in accordance
with the terms of the Contract of employment, certain payments which are in
fact the price of Labour and earned in accordance with the terms of the
Contract of employment are excluded from the main part of the definition of
“basic wages”. It is undeniable that the exceptions contained in Clause (ii) refer
to payments which are earned by an Employee in accordance with the terms of
his Contract of employment. It was admitted by Counsel on both sides before
us that it was difficult to find any one basis for the exceptions contained in the
three clauses. It is clear however from Clause (ii) that from the definition of the
word “Basic Wages” certain earnings were excluded, though they must be
earned by Employees in accordance with the terms of the contract of
employment. Having excluded “dearness allowance” from the definition of
“basic wages”, Section 6 then provides for inclusion of dearness allowance for
purposes of contribution. But that is clearly the result of the specific provision
in Section 6 which lays down that contribution shall be 6¼ per centum of the
basic wages, dearness allowance and retaining allowance (if any). We must
therefore try to discover some basis for the exclusion in Clause (ii) as also the
inclusion of dearness allowance and retaining allowance (for any) in Section 6.
It seems that the basis of inclusion in Section 6 and exclusion in Clause (ii) is
that whatever is payable in all concerns and is earned by all Permanent
Employees is included for the purpose, of contribution under Section 6, but
whatever is not payable by all concerns or may not be earned by all Employees
of a concern is excluded for the purpose of contribution. Dearness allowance
(for example is payable in all concerns either as an addition to basic wages or
as a part of consolidated Wages where a concern does not have separate
dearness allowance and Basic Wages). Similarly, retaining allowance is
payable to all Permanent Employees in all seasonal factories like sugar
factories and is therefore included in Section 6; but house-rent allowance is not
paid in many concerns and sometimes in the same concern it is paid to some
Employees but not to others, for the theory is that house-rent is included in the
payment of basic wages plus dearness allowance or consolidated wages.
Therefore, house-rent allowance which may not be payable to all Employees of
a concern and which is certainly not paid by all concern is taken out of the
definition of “basic wages”, even though the basis of payment of house-rent
allowance where it is paid is the contract of employment. Similarly, overtime
allowance though it is generally in force in all concerns is not earned by all
Employees of a concern. It is also earned in accordance with the terms of the
contract of employment; but because it may not be earned by all Employees of
a concern it is excluded from “basic wages”. Similarly, commission or any
other similar and other allowances is excluded from the definition of “basic
wages” for commission and other allowances are not necessarily to be found in
all concerns; nor are they necessarily earned by all Employees of the same
concern, though where they exist they are earned in accordance with the terms
of the Contract of employment. It seems therefore, that the basis for the
exclusion in Clause (ii) of the exceptions in Section 2(b) is that all that is not
earned in all concerns or by all Employees of concern is excluded from basic
wages. To this the exclusion of dearness allowance in Clause (ii) is an
exception. But that exception has been corrected by including dearness
allowance in Section 6 for the purpose of contribution. Dearness allowance
which is an exception in the definition of “basic wages”, is included for the

Labour Law Notes / January-2021

398 LABOUR LAW NOTES 2021 (1) LLN

purpose of contribution by Section 6 and the real exceptions therefore in

Clause (ii) are the other exceptions besides dearness allowance, which has been
included through Section 6.”
10. Any variable earning which may vary from individual to individual
according to their efficiency and diligence will stand excluded from the term
“basic wages” was considered in Muir Mills Co. Ltd., Kanpur v. Its Workmen,
AIR 1960 SC 985 observing:
11. Thus understood “basic wage” never includes the additional emoluments
which some Workmen may earn, on the basis of a system of bonuses related to
the production. The quantum of earning in such bonuses varies from individual
to individual according to their efficiency and diligence; it will vary sometimes
from season to season with the variations of working conditions in the factory or
other place where the work is done; it will vary also with variations in the rate of
supplies of raw material or in the assistance obtainable from machinery. This
very element of variation, excludes this part of workmen’s emoluments from the
connotation of “basic wages”...”
17. It is thus clear that where the Wage is universally, necessarily or
ordinarily paid to all across the board, such emoluments are Basic Wages.
However, where the payment is available and specially paid to those, who
avail of the opportunity is not Basic Wages. Any payment made by the
Employer as a special incentive is not forming the part of Basic Wage.
However, it needs to be kept in mind that house rent allowance is expressly
excluded from the purview of the term “Basic Wages” in view of provisions
of Sub Section 2(b) of the EPF Act. The dearness allowance, though
excluded from Basic Wages under Section 2(b), it is expressly included for
the purpose of making contribution by virtue of Section 6 of the EPF Act.
18. In the case in hand, I have quoted the stand of the Respondent-
Employer before the Assistant Provident Fund Commissioner (Enforcement)
while determining the amount payable towards the contribution of Provident
Fund in exercise of powers under Section 7-A of the EPF Act. Similarly
contents of the grounds urged by the Respondent-Employer in its Appeal
before the Tribunal are also stated by me in the following paragraph. It is not
the stand of the Respondent-Employer that Uniform allowance, Washing
allowance, Food allowance and Traveling allowance is being paid by it to its
Employees as a special incentive or that these allowance were variable and
linked to any incentive for getting more output from such Employees. It is
not the stand of the Respondent-Establishment that these allowances were
not paid across the board to all Employees. No material was placed before
the Assistant Commissioner of Provident Fund (establishment) by the
Respondent-Establishment to show that allowances such as Uniform
allowance, Washing allowance, Food allowance and Traveling allowance
were being paid to such Employees, who availed the opportunity and not to
all and sundry. On the contrary, in the Memo of Appeal, it was the stand of
the Respondent-Employer that these allowances are uniformly paid to all its

Labour Law Notes / January-2021

January 2021 Employees’ Provident Fund Organization v. 399
M.S. Raven Beck Solutions (India) Ltd. (Ker.) (A.M. Badar, J.)
Employees. This makes it clear that uniform allowance, washing allowance,
food allowance and traveling allowance forms the integral part of basic
wages and as such, the amount paid by way of these allowances to the
Employees by the Respondent-Establishment were liable to be included in
basic wages for the purpose of Assessment and deduction towards
contribution to the Provident Fund. Splitting of the pay of its Employees by
the Respondent-Establishment by classifying it as payable for Uniform
allowance, Washing allowance, Food allowance and Traveling allowance
certainly amounts to subterfuge intended to avoid payment of Provident
Fund Contribution by the Respondent-Establishment. However, at the same
time, the only error of law which can be found in the order under Section 7-
A of the EPF Act (Ext.P1) is that of inclusion of HRA in Basic Wages for
assessing and claiming deduction on that ground. Rest of the allowances viz.,
Uniform allowance, Washing allowance, Food allowance and Traveling
allowance form the part of Basic Wages and were certainly liable to be
included in Basic Wages for the purpose of deduction of contribution
towards Provident Fund. The Appellate Tribunal has certainly committed
error of law in excluding these allowances for the purpose of deduction of
Provident Fund Contribution. The impugned Order of the Appellate Tribunal
to that extent cannot be sustained and is liable to be interfered with.
19. So far as question of delay in filing the Petition is concerned, it needs
to mention that the instant Petition is already admitted for final hearing by
this Court on 18.5.2016. Once the Petition is admitted for final hearing, the
question of delay cannot be gone into. The learned Counsel for the Petitioner
has rightly relied on Judgment of the Hon’ble Patna High Court in the matter
of Bipat Gope and others (supra). Relevant portion from Paragraph 15 of
that Judgment can be quoted with advantage.
“It is not necessary that there should be an order condoning the delay. The mere
admission of an application filed beyond 60 days indicates that the delay, if any,
must have been condoned by the Bench which admitted it. Moreover, once the
Criminal Revision have been admitted, it has to be decided on merits, and it
cannot be thrown out simply on the ground that it was filed beyond 60 days. The
above view is amply supported by decisions of this Court.
In Lalo Mahto v. Emperor, MANU/BH/0157/1941, Varma, J. held that, when the
application has been admitted, the question of limitation is not of much
importance in a Criminal Revision about which no limitation has been fixed by
statute. In Bibi Zainab v. Anwar Khan, MANU/BH/0181/1945, a similar view
has been taken by Pande, J., who has held that, once a Petition has been admitted
by the Court, it has got to be considered on its merit, and the plea of limitation
does not apply, particularly when there is no period prescribed by the statute for
such application.”
20. Thus, as the Petition is already admitted for final hearing by this
Court in the year 2016, it cannot be dismissed on the technical ground of
delay in filing the Petition, particularly when the relief is sought for and on

Labour Law Notes / January-2021

400 LABOUR LAW NOTES 2021 (1) LLN

behalf of the Employees by the Provident Fund Organization, which is the

Trustee of vindicating the rights of the subjects of the welfare statute.
21. In the matter of the Regional Provident Fund Commissioner v.
Employee’s Provident Funds Appellate Tribunal (supra), relied by the
learned Counsel for the Respondent-Establishment, it is held by the Hon’ble
Division Bench of Calcutta High Court that the Provident Fund
Commissioner, being Quasi Judicial Authority, cannot challenge the Order
passed by the Appellate Authority reversing the order of the Quasi Judicial
Authority, because the said Quasi Judicial Authority is not a party to the lis.
However, in the case in hand, the Appellate Order is challenged by the
Officer concerned, who is authorized for this purpose by the Provident Fund
Organization and as such, it cannot be said that the Petition as framed and
filed is not maintainable. Similarly, no merits can be found in the submission
of the learned Counsel for the Respondent that the Writ Petition is not
maintainable in view of provisions of Section 7-L of the EPF Act which
gives finality to the order made by the Appellate Tribunal. The fact that the
order of the Tribunal disposing the Appeal cannot be questioned in any
Court of law, makes the instant Writ Petition maintainable. No other
alternate statutory remedy is available for challenging the Appellate Order. It
was faintly argued that there was no reasonable opportunity of representation
to the Respondent/Establishment in an Enquiry under Section 7-A of the
EPF Act. There is nothing on record to substantiate such contentions.
22. In the result, the Petition deserves to be partly allowed with the
following order:
1. The impugned Order, Ext.P4, dated 23.1.2009 passed by the
Employees Provident Fund Appellate Tribunal, New Delhi, allowing the
Appeal is quashed and set aside.
2. The Order passed by the Assistant Provident Fund Commissioner
(Enforcement) on 6.12.2007, Ext.P1 is confirmed, in so far as it relates to
uniform allowance, washing allowance, food allowance and traveling
allowance.
3. The direction in the order at Ext.P1 passed by the Assistant Provident
Fund Commissioner (Enforcement) for inclusion of House Rent
Allowance in the Basic Wages for the purpose of Assessment and
deduction of contribution to Provident Fund is quashed and set aside by
maintaining the rest of the order.
With these observations and directions, the above WP(C) stands finally
disposed of.
  

Labour Law Notes / January-2021

January 2021 Munni Bai Sen v. M.P. State Agriculture Marketing Board, Bhopal 401
(DB) (MP) (Ravi Shankar Jha, A.C.J. & Vijay Kumar Shukla, J.)
2021 (1) LLN 401 (DB) (MP)
IN THE HIGH COURT OF MADHYA PRADESH
Ravi Shankar Jha, A.C.J. & Vijay Kumar Shukla, J.
W.A. No.269 of 2019
26.7.2019
Munni Bai Sen .....Appellant
Vs.
M.P. State Agriculture Marketing Board, Bhopal .....Respondent
SERVICE LAW — BACK WAGES — In full — Entitlement to —
Appellant-Employee, who was reinstated in service, aggrieved that she
was not awarded full Back Wages — Held, no proof or pleading
submitted by Appellant that she was not gainfully employed elsewhere
during relevant period — In absence of same, Order of Single Judge
rejecting claim of Appellant for Back Wages in full, not interfered with
— Writ Appeal dismissed. (Paras 5, 6 & 7)
CASES REFERRED
Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED.), 2013 (4)
LLN 417 (SC) ..................................................................................................................2, 5
Raj Kumar v. Dir. of Education, 2016 (2) LLN 338...............................................................2, 5
Rajasthan State Road Transport Corporation, Jaipur v. Shri Phool Chand (Dead) through
L.Rs., C.A. No.1756/2010, dated 20.9.2018............................................................3, 5, 6, 7
Rajneesh Gupta, Advocate for Appellant.
Pranay Chobey, Advocate for Respondent.
Finding — W.A. dismissed.
JUDGMENT
Ravi Shankar Jha, A.C.J. & Vijay Kumar Shukla, J.
1. The present Appeal has been filed by the Appellant under Section 2(1)
of Madhya Pradesh Uchcha Nyayalaya (Khand Peeth Ko Appeal)
Adhiniyam, 2005, being aggrieved by Order, dated 8.1.2019 passed by the
learned Single Judge whereby the Writ Petition, filed by the Respondent-
M.P State Agriculture Marketing Board, in respect of the Award of full Back
Wages to the Appellant herein has been allowed.
2. The learned Counsel appearing for the Appellant, on the strength of the
decision rendered in the cases of Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.ED.) and others, 2013 (4) LLN 417 (SC) :
2013 (10) SCC 324 and Raj Kumar v. Dir. of Education and others, 2016
(2) LLN 338 : 2016 (6) SCC 541, submits that the learned Single Judge has
wrongly appreciated the law in this regard while denying Back Wages to the

Labour Law Notes / January-2021

402 LABOUR LAW NOTES 2021 (1) LLN

Appellant. It is submitted that even in the absence of any pleadings, as the

Appellant has made a statement during her examination before the Labour
Court that she was not gainfully employed and the Respondent i.e., the
Management did not produce any evidence to rebut the same, therefore, her
claim for Back Wages has rightly been allowed by the Labour Court. It is
submitted that the learned Single Judge, while allowing the Petition filed by
the Respondents has not taken this aspect into consideration or appreciated
the law laid down by the Supreme Court in the cases of Deepali Gundu
Surwase (supra), and Raj Kumar (supra), and, therefore, the impugned
Order passed by the learned Single Judge deserves to be set aside.
3. The learned Counsel for the Respondents on advance copy, per contra,
submits that the learned Single Judge has rightly quoted and relied upon the
law laid down by the Supreme Court in the case of Rajasthan State Road
Transport Corporation, Jaipur v. Shri Phool Chand (Dead) through L.Rs.,
C.A. No.1756/2010, dated 20.9.2018, wherein the Supreme Court has clearly
laid down that “it is necessary for the Workman in such cases to plead and
prove with the aid of evidence that after his dismissal from the service, he
was not gainfully employed elsewhere and had no earning to maintain
himself or/and his family.”
4. It is submitted that in the instant case admittedly, there was no
pleading or proof or any other material produced by the Appellant before the
Labour Court to establish that she was not gainfully employed elsewhere. It
is submitted that in the absence of any pleadings, the Respondents did not
take up the issue contested in that regard before the Labour Court. It is
submitted that in such circumstances, mere statement by the Appellant at the
time of her examination before the Labour Court without giving any
opportunity to the Respondents to respond to the same or rebut the same
would not satisfy the Requirement of law or entitle the Appellant to be
awarded full Back Wages.
5. We have heard the learned Counsel for the parties at length. We have
also perused the decisions of Supreme Court rendered in the cases of
Deepali Gundu Surwase (supra), Raj Kumar (supra), and Rajasthan State
Road Transport Corporation, Jaipur (supra). All the three decisions are of
the Bench of equal strength and the latest decision is that of Rajasthan State
Road Transport Corporation, Jaipur (supra). In the said case the Supreme
Court has taken into consideration the decision rendered in the case of
Deepali Gundu Surwase (supra), and while doing so it has clearly stated that
“it is necessary for the workman in such cases to plead and prove with the
aid of evidence that after his dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain himself or/and his
family” in Para 12.
6. The learned Single Judge has quoted the aforesaid decision of the
Rajasthan State Road Transport Corporation, Jaipur (supra), and has held

Labour Law Notes / January-2021

January 2021 State of M.P. v. Ramadhar Pal 403
(DB) (MP) (Sheel Nagu & Rajeev Kumar Shrivastava, JJ.)
that in view of the latest law laid down by the Supreme Court, as there was
no pleading or proof produced by the Appellant regarding gainful
employment, the same could not be automatically awarded to her as has been
done by the Labour Court.
7. In view of the latest decision of the Supreme Court rendered in the case
of Rajasthan State Road Transport Corporation, Jaipur (supra), which has
been quoted by the learned Single Judge wherein it has laid down that the
Workman is required to plead and prove with the aid of evidence that after
his dismissal from the service, he was not gainfully employed anywhere and
had no earning to maintain himself or/and his family, we do not find any
illegality or infirmity in the Order passed by the learned Single Judge
warranting interference by this Court in this Appeal.
8. The Appeal filed by the Appellant being meritless is, accordingly,
dismissed.
  

2021 (1) LLN 403 (DB) (MP)

IN THE HIGH COURT OF MADHYA PRADESH
Sheel Nagu & Rajeev Kumar Shrivastava, JJ.
W.A. No.1779 of 2019
5.10.2020
State of M.P. and others .....Appellants
Vs.
Ramadhar Pal .....Respondent
INDUSTRIAL DISPUTES ACT, 1947 (14 of 1947), Sections 10 & 33-
C(ii) — REFERENCE — Recovery of money due from Employer —
Gainful employment during Termination period — Burden of proof —
Respondent-Workman raised Industrial Dispute over his Termination
— Labour Court found Termination to be unlawful and directed
Reinstatement with 50% Back Wages — Challenge to by Employer to
Reinstatement and grant of 50% Wages, whereas Workman sought
100% Back Wages — Upon challenge before Single Judge, Award of
Labour Court upheld and Petition of Workman impliedly stood
dismissed — On challenge by Employer-Appellant, held, Burden of
proof by way of Affidavit of being employed or not rests upon
Workman exclusively — Once Workman states on oath about his non-
employment, only then burden of proof shifts upon Employer —

Labour Law Notes / January-2021

404 LABOUR LAW NOTES 2021 (1) LLN

Workman, in Claim Statement, pleaded about his non-employment but

in subsequent oath followed by cross-examination, Workman did not
utter a single word on oath about being not gainfully employed after
Termination — Thus, neither on strength of law laid down in J.K.
Synthetics v. K.P. Agarwal, 2007 (2) SCC 433, nor on anvil of law in
Deepali Gundu Surwase v. Kranti Junior Adhyapak, 2013 (10) SCC 324,
Workman could prove factum of his being not gainfully employed after
Termination — Single Judge not considered issue involved in right
perspective and took sympathetic view considering Act being piece of
beneficial legislation — Finding of Labour Court holding Workman
entitled to 50% Back Wages is perverse — Labour Court overstepped
its jurisdiction while granting impugned relief — Findings rendered by
Single Judge need interference of High Court — Impugned Orders set
aside — Appeal allowed. (Paras 6.5, 7, 8.1 to 8.10, 9 & 10)
CASES REFERRED
Deepali Gundu Surwase v. Kranti Junior Adhyapak, 2013 (4) LLN 417 (SC).............................
........................................................................................ 5, 8.2, 8.3, 8.4(a), 8.4(b), 8.5, 8.6
J.K. Synthetics Ltd. v. K.P. Agrawal, 2007 (2) SCC 433 ........................... 4.1, 8.2, 8.3, 8.4, 8.6
Rajinder Kumar v. Delhi Administration, 1985 (1) LLN 11 (SC) ..............................................5
Ankur Mody, Additional Advocate General for Appellants.
Prashant Sharma, Advocate for Respondent.
Finding — W.A. allowed.
JUDGMENT
Sheel Nagu & Rajeev Kumar Shrivastava, JJ.
Learned Counsel for the rival parties are heard through Video
Conferencing.
1. I.A. 5116/2019, an application under Section 5 of the Limitation Act,
for condonation of delay of 574 days in preferring the instant Appeal is taken
up, considered and allowed for the reasons mentioned therein.
2. This Intra-Court Appeal under Section 2(1) of Madhya Pradesh
Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 preferred by
the State and it’s functionaries assails the common Order, dated 5.1.2018
passed by Single Bench of this Court deciding three Petitions i.e. W.P.
7776/13 (State of M.P. & others v. Ramadhar Pal) W.P. 746/2015 (The
Director Mahatma Gandhi Rajya Gramin Vikas Sansthan v. Ramadhar Pal)
& W.P. 6019/12 (Ramadhar Pal v. State of M.P. & others), together.
2.1. W.P. 6019/12 & W.P. 7776/13 filed by the Workman and the
Employer respectively questioned the Award of Labour Court passed on
12.1.2012 under Industrial Disputes Act, 1947 (for brevity ID Act) on a
reference made by appropriate govt. under Section 10 of the ID Act.

Labour Law Notes / January-2021

January 2021 State of M.P. v. Ramadhar Pal 405
(DB) (MP) (Sheel Nagu & Rajeev Kumar Shrivastava, JJ.)
2.2. The third W.P. 746/2015 was also by the Employer questioning the
legality and validity of Order passed by Labour Court under Section 33-C
(ii) of the ID Act directing payment of arrears arising from 50% Back Wages
and arrears of salary for the period from 16.5.2012 to 23.7.2014, the period
between the Award and the actual reinstatement.
2.3. The Labour Court in it’s Award finding the termination to be
unlawful retrenchment directed reinstatement with 50 % Back Wages. Thus,
challenge by the Employer was to the direction of reinstatement and 50%
Back Wages whereas the Workman in his Petition sought 100% Back
Wages.
3. The learned Single Judge upheld the said Award of Labour Court and
also the Order passed under Section 33-C(ii) of ID Act, while the Petition
filed by the Workman claiming full Back Wages was though taken up but
not considered in the impugned Order but was impliedly dismissed since
learned Single Judge upheld the Award of the Labour Court on merits.
3.1. The Employer is thus before us in this Writ Appeal assailing grant of
50% Back Wages to the Workman.
4. The learned Additional Advocate General Shri Ankur Mody submits as
follows:
(i) The statement of claim of Workman in Para 8 reveals that Workman
was not gainfully employed elsewhere after termination, in response to
which Employer in Written Statement in Para 8 denied this pleading by
stating that Workman is an able bodied man who earned his livelihood
even after his termination by working elsewhere and therefore has
suffered no financial loss due to termination. In this backdrop of pleading
and counter pleading it is urged that the Workman did not utter a single
word on oath either in examination-in-chief or cross-examination of
being not gainfully employed. The grant of 50% Back Wages is thus,
urged to be perverse & unlawful.
(ii) In the aforesaid background relating to pleading and absence of
evidence, it is submitted by State that unless the pleadings contained in
Para 8 of Statement of claim are supported by statement on oath, the said
pleading alone cannot lead to Workman discharging the burden of
proving that he is not gainfully employed after termination.
(iii) In continuation, the State submits that as regards Back Wages, when
the pleadings are not backed by statement on oath of Workman before
Labour Court, the onus of proving otherwise, i.e. the Workman was
gainfully employed, does not shift on the Employer.

Labour Law Notes / January-2021

406 LABOUR LAW NOTES 2021 (1) LLN

4.1. In view of aforesaid, the State attacks the direction of grant of 50%
Back Wages by relying upon decision of Apex Court in the case of J.K.
Synthetics Ltd. v. K.P. Agrawal & anr., 2007 (2) SCC 433 (Para 18).
5. On the other hand, learned Counsel for the Workman Shri Prashant
Sharma relying upon decision of Apex Court in Rajinder Kumar v. Delhi
Administration, 1985 (1) LLN 11 (SC) : AIR 1984 SC 1805 (Para 21) and
Deepali Gundu Surwase v. Kranti Junior Adhyapak & ors., 2013 (4) LLN
417 (SC) : 2013 (10) SCC 324, submits that for the Workman to discharge
burden of proving that he is not gainfully employed after termination, it is
enough if the Workman merely pleads as such without requirement of
making statement on oath before Adjudicatory Authority in that regard. In
sum and substance, learned Counsel for the Workman contends that the
Workman is not obliged to ensure co-existence of pleading as well as
statement on oath for discharging the said burden, for which the proposition
laid down in case of Deepali Gundu Surwase (supra) in Para 38.3 is heavily
relied upon.
6. To appreciate the arguments of learned Counsel for rival parties it is
essential to scrutinize the statutory provision governing the procedure to be
followed by Labour Court as laid down in Section 10-B of the Industrial
Disputes (Central) Rules, 1957 framed under the ID Act. For ready reference
and convenience, this provision is reproduced below:
“10-B. Proceeding before the Labour Court, Tribunal or National Tribunal.—
(1) While referring an Industrial Dispute for adjudication to a Labour Court,
Tribunal or National Tribunal, the Central Government shall direct the party
raising the dispute to file a statement of claim complete with relevant documents,
list of reliance and Witnesses with the Labour Court, Tribunal or National
Tribunal within fifteen days of the receipt of the order of reference and also
forward a copy of such statement to each one of the opposite parties involved in
the dispute.
(2) The Labour Court, Tribunal or National Tribunal after ascertaining that
copies of statement of claim are furnished to the other side by party raising the
dispute shall fix the first hearing on a date not beyond one month from the date
of receipt of the order of reference and the opposite party or parties shall file
their Written Statement together with documents, list of reliance and Witnesses
within a period of 15 days from the date of first bearing and simultaneously
forward a copy thereof to the other party.
(3) Where the Labour Court, Tribunal or National Tribunal, as the case may be,
finds that the party raising the dispute though directed did not forward the copy
of the statement of claim to the opposite party or parties, it shall give direction to
the concerned party to furnish the copy of the statement to the opposite party or
parties and for the said purpose or for any other sufficient cause, extend the time
limit for filing the statement under sub-rule (1) or Written Statement under sub-
rule (2) by an additional period of 15 days.

Labour Law Notes / January-2021

January 2021 State of M.P. v. Ramadhar Pal 407
(DB) (MP) (Sheel Nagu & Rajeev Kumar Shrivastava, JJ.)
(4) The party raising a dispute may submit a rejoinder if it chooses to do so, to
the Written Statement(s) by the appropriate party or parties within a period of
fifteen days from the filing of Written Statement by the latter.
(5) The Labour Court, Tribunal or National Tribunal, as the case may be, shall
fix a date for evidence within one month from the date of receipt of the
statements, documents, list of Witnesses, etc., which shall be ordinarily within
sixty days of the date on which the dispute was referred for adjudication.
(6) Evidence shall be recorded either in Court or on Affidavit but in the case of
Affidavit the opposite party shall have the right to cross-examine each of the
deponents filing the Affidavit. As the oral examination of each Witness
proceeds, the Labour Court, Tribunal or National Tribunal shall make a
memorandum of the substance of what is being deposed. While recording the
evidence the Labour Court, Tribunal or National Tribunal shall follow the
procedure laid down in Rule 5 of Order 18 of the First Schedule to the Code of
Civil Procedure, 1908.
(7) On completion of evidence either arguments shall be heard immediately or a
date shall be fixed for arguments oral hearing which shall not be beyond a period
of fifteen days from the close of evidence.
(8) The Labour Court, Tribunal or National Tribunal, as the case may be, shall
not ordinarily grant an adjournment for a period exceeding a week at a time but
in any case not more than three adjournments in all at the instance of the parties
to the dispute:
Provided that the Labour Court, Tribunal or National Tribunal, as the case may
be, for reasons to be recorded in writing, grant an adjournment exceeding a week
at a time but in any case not more than three adjournments at the instance of any
one of the parties to the dispute.
(9) In case any party defaults or fails to appear at any stage the Labour Court,
Tribunal or National Tribunal, as the case may be, may proceed with the
reference ex parts and decide the reference application in the absence of the
defaulting party:
Provided that the Labour Court, Tribunal or National Tribunal, as the case may
be, may on the application of either party filed before the submission of the
award revoke the order that the case shall proceed ex parte, if it is satisfied that
the absence of the party was on justifiable grounds.
(10) The Labour Court, Tribunal or National Tribunal, as the case may be, shall
submit its award to the Central Government within one month from the date of
arguments oral hearing or within the period mentioned in the order of reference
whichever is earlier.
(11) In respect of reference under Section 2-A, the Labour Court or Tribunal,
National Tribunal, as the case may be, shall ordinarily submit its awards within a
period of three months:
Provided that the Labour Court, Tribunal or National Tribunal, may, as and when
necessary, extend the period of three months and shall record its reasons in
writing to extend the time for submission of the award for another specified
period.]”

Labour Law Notes / January-2021

408 LABOUR LAW NOTES 2021 (1) LLN

6.1. A plain reading of the aforesaid statutory provision reveals that

process of adjudication before Labour Court on receipt of reference from the
appropriate govt. starts from filing of statement of claim by Workman which
are Workman’s pleadings. This is followed by the opposite party (Employer)
filing Written Statement which are pleadings on behalf of Employer.
Whereafter liberty of filing rejoinder to raise additional pleadings is afforded
to Workman. Thereafter comes the stage of recording of evidence, which
may be oral or by way of Affidavit of Workman and his Witnesses if any.
Similarly evidence is adduced by the Employer too. The provision further
provides that in case the evidence is adduced by way of Affidavit then
opposite party shall have right to cross-examine the deponent of the
Affidavit. While doing so, the provision of Order 18, Rule 5, C.P.C. would
be followed. This procedural provision further stipulates that on completion
of evidence adduced by rival parties arguments are heard and thereafter
Labour Court submits it’s Award to the Appropriate Govt.
6.2. The Scheme behind Section 10-B is that making of Award by the
adjudicatory body (Labour Court herein) is founded upon co-existence of
pleadings of the parties on one hand and the evidence adduced by them on
the other. It is only when one of the parties fails to adduce any evidence in
support of pleadings and such pleadings remain un-rebutted, then such
pleadings can mature into evidentiary proof. Otherwise when pleadings and
as well as evidence are available on record then findings rendered by
adjudicatory body are required to be mandatorily founded upon the
pleadings and as well as evidence. If either the pleading or evidence is
missing on any fact or issue then no finding can be rendered by the
adjudicatory authority in regard to the said fact/issue.
6.3. The reason is not far to see. A fact or an issue gets converted into
proof/finding only after it is tested on the anvil of evidence adduced by the
parties for and against their pleadings.
6.4. In an Industrial Dispute there are various disputed questions of fact
involved. One of them is the issue of Back Wages. This issue relates
predominantly to the field of facts and not law and thus has to be pleaded
and proved by evidence adduced before the Labour Court. The factual
aspects required to be proved are the factum of Workman being employed
elsewhere after termination or not, whether employment secured by the
Workman after termination was gainful or not, the duration of gainful
employment etc. To prove these facts, not only pleadings are required to be
raised but even evidence is to be adduced.
6.5. The burden of pleading and proving by way of statement on oath the
fact of being gainfully employed, rests upon the Workman exclusively. Once
the Workman pleads and states on oath that he is not gainfully employed, it
is only then that the burden to prove otherwise shifts upon the Employer.

Labour Law Notes / January-2021

January 2021 State of M.P. v. Ramadhar Pal 409
(DB) (MP) (Sheel Nagu & Rajeev Kumar Shrivastava, JJ.)
7. In the instant case, the Workman in Para 8 of statement of claim
pleaded that he was not gainfully employed after termination. However, in
his subsequent statement on oath, filed under Order 18, Rule 4, C.P.C.,
followed by cross-examination, dated 18.6.2011 the Workman did not utter a
singe word on oath about being not gainfully employed after termination.
8. Thus, the question that falls for consideration before this Court is as to
whether in the absence of statement on oath of the Workman of being not
gainfully employed, can a finding or direction be given by the Labour Court
granting 50% Back Wages solely on pleading in statement of claim which is
denied in Written Statement by Employer.
8.1. To enable this court to answer the said question a peep into the
previous judicial pronouncements on the issue involved is necessary.
8.2. Relevant extracts of decisions of Apex Court in J.K. Synthetics Ltd.
(supra) and Deepali Gundu Surwase (supra) are reproduced below:
(i) J.K. Synthetics Ltd. v. K.P. Agrawal & anr., 2007 (2) SCC 433:
“18. Coming back to Back Wages, even if the Court finds it necessary to award
Back Wages, the question will be whether Back Wages should be awarded fully
or only partially (and if so the percentage). That depends upon the facts and
circumstances of each case. Any income received by the Employee during the
relevant period on account of alternative employment or business is a relevant
factor to be taken note of while awarding Back Wages, in addition to the several
factors mentioned in Rudhan Singh (supra) and Udai Narain Pandey (supra).
Therefore, it is necessary for the Employee to plead that he was not gainfully
employed from the date of his termination. While an Employee cannot be asked
to prove the negative, he has to at least assert on oath that he was neither
employed nor engaged in any gainful business or venture and that he did not
have any income. Then the burden will shift to the Employer. But there is,
however, no obligation on the terminated Employee to search for or secure
alternative employment. Be that as it may.”
(ii) Deepali Gundu Surwase v. Kranti Junior Adhyapak & ors., 2013 (4)
LLN 417 (SC) : 2013 (10) SCC 324:
“38.3. Ordinarily, an Employee or Workman, whose services are terminated and
who is desirous of getting Back Wages is required to either plead or at least
make a statement before the adjudicating authority or the Court of first instance
that he/she was not gainfully employed or was employed on lesser wages. If the
Employer wants to avoid payment of full Back Wages, then it has to plead and
also lead cogent evidence to prove that the Employee/Workman was gainfully
employed and was getting wages equal to the wages he/she was drawing prior to
the termination of service. This is so because it is settled law that the burden of
proof of the existence of a particular fact lies on the person who makes a positive
averments about its existence. It is always easier to prove a positive fact than to
prove a negative fact. Therefore, once the Employee shows that he was not
employed, the onus lies on the Employer to specifically plead and prove that the

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410 LABOUR LAW NOTES 2021 (1) LLN

Employee was gainfully employed and was getting the same or substantially
similar emoluments.”
8.3. Pertinently, the aforesaid two Judgments are of coordinate benches
where subsequent decision rendered in the case of Deepali Gundu Surwase
(supra) has considered the earlier decision in J.K. Synthetics Ltd. (supra).
The subsequent decision of Deepali Gundu Surwase (supra), while allowing
full Back Wages distinguished the earlier case of J.K. Synthetics Ltd.
(supra), where Apex Court set aside the order of High Court thereby
upholding the dismissal of Workman therein, by observing in Para 18 that
though various factual aspects are involved behind the issue of Back Wages
but yet it is essential for the Workman to plead and as well as state on oath
that Workman was not gainfully employed. Thereafter the burden shifts on
the Employer to prove otherwise.
8.4. Whereas reading contents of Para 38.3 in the case of Deepali Gundu
Surwase (supra), elicits that the Apex Court seems to have laid down that for
proving the fact of being not gainfully employed it is enough for the
Workman to either plead or at least state on oath that he was not gainfully
employed. Thus, there appears slight ostensible variance in the law laid
down by the Apex Court in the said two cases of J.K. Synthetics Ltd.
(supra); and Deepali Gundu Surwase (supra).
8.4.(a) If this factual matrix in the instant case is tested on the anvil of the
above said two decisions on the point, i.e. J.K. Synthetics Ltd. (supra); and
Deepali Gundu Surwase (supra), then it is seen that as per the law laid down
in J.K. Synthetics Ltd., the Workman herein has not been able to establish
the fact of being not gainfully employed after termination since he has
merely pleaded in that regard but has not made any statement on oath.
Whereas if the facts attending herein are tested on the anvil of law laid down
in Deepali Gundu Surwase (supra), it is also seen that the Workman has not
been able to establish the factum of not being gainfully employed after
termination, owing to his failure to make statement on oath.
8.4.(b) In Deepali Gundu Surwase (supra), the Apex Court taking a
liberal view held that the Workman has to plead or at least state on oath the
fact of being not gainfully employed. The Apex Court meant that even if
there is absence of pleadings there must be statement on oath before the
adjudicatory authority in that regard.
8.5. Therefore according to Deepali Gundu Surwase’s case statement on
oath of Workman before the adjudicatory authority of being not gainfully
employed is mandatory, while pleading in that regard is optional.
8.6. The Workman herein has not made any statement on oath of being
gainfully employed after termination. Thus, neither on the strength of the
law laid down in J.K. Synthetics Ltd. (supra), nor on the anvil of law laid

Labour Law Notes / January-2021

January 2021 State of M.P. v. Ramadhar Pal 411
(DB) (MP) (Sheel Nagu & Rajeev Kumar Shrivastava, JJ.)
down in Deepali Gundu Surwase (supra), the Workman could prove the
factum of being not gainfully employed after termination.
8.7. Another aspect which deserves consideration is that fundamental
principles of Law of Evidence are undoubtedly applicable to the proceedings
before the Labour court. Section 106 of Evidence Act, stipulates that if
knowledge of a particular fact is personal to a particular person then burden
lies upon him to prove such fact, and only thereafter the burden shifts upon
the other side to prove otherwise.
8.8. In the instant case knowledge as to whether Workman was gainfully
employed is personal to the Workman and not to the Employer. Thus the
Workman has to establish by way of pleading and statement on oath before
the Labour Court that he was not gainfully employed. In the instant case, the
Workman has though pleaded in Para 8 of his statement of claim that he was
not gainfully employed but he has not made any such statement before the
Labour Court, on oath.
8.9. Therefore, the learned Single judge has not considered the issue
involved in it’s right perspective and has taken a view in favour of the
Workman presumably on the basis of scheme of Industrial Law being
beneficial piece of legislation which tilts more in favour of the Workman
than the Employer.
8.10. As such the finding of Labour court that the Workman is entitled to
50% Back Wages is perverse and thus Labour court overstepped it’s
jurisdiction while giving the said impugned relief to the Workman.
9. Accordingly, this Court has no hesitation to hold that interference is
warranted in the finding rendered by the learned Single Judge in the
impugned Order.
10. Consequently, the Appeal stands allowed. The impugned Order, dated
5.1.2018 in W.P. 7776/13 (State of M.P. & others v. Ramadhar Pal) passed
by the learned Single Judge to the extent of upholding the finding and
direction of Labour Court regarding entitlement and grant of 50% Back
Wages, are set aside.
  

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412 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 412 (DB) (Ori.)

IN THE HIGH COURT OF ORISSA
Mohammad Rafiq, C.J. & K.R. Mohapatra, J.
O.J.C. No.5277 of 1994 & W.A. Nos. 355, 356 & 357 of 2015 (O.J.C No.5277 of
1994 is a Petition under Articles 226 & 227 of the Constitution of India. (W.A. Nos.355, 356 & 357 of
2015 are arising out of Judgment dated 3.4.2015 passed by the learned Single Judge in OJC Nos.9630 &
9632 of 1993, and O.J.C. No.2172 of 1994)

28.9.2020
Orissa Mining Corporation Ltd. and others .....Petitioners
Vs.
Union of India, Ministry of Labour and others .....Respondents
CONTRACT LABOUR (REGULATION AND ABOLITION) ACT,
1970 (37 of 1970), Sections 2(a), 2(e), 3 & 10(1) — MINES ACT, 1952
(35 of 1952), Section 2(1)(j) — ‘Appropriate Government’ —
‘Establishment’ — Definitions — Constitution of Central Advisory
Contract Labour Board [CACLB] — Prohibition of employment of
Contract Labour — ‘Mines’ — Meaning — Challenge under OJC
No.5277/1994 is by Petitioner to validity of Notification, dated 23.3.1993
issued by UoI under Section 10(1) of CLRA prohibiting employment of
Contract Labour in specified works in Manganese Mines in Country —
Writ Appeal has been filed by UoI impugning Judgement, dated
3.4.2015 by Single Judge allowing Petition of Aryan Mining holding that
Notification, dated 23.3.1993 is not applicable to Petitioner’s
establishment-Manganese Mines — W.As. 355 & 356 of 2015 also filed
by UoI impugning Judgement, dated 3.4.2015 of Single Judge, allowing
Writ Petitions of Patnaik Minerals and B.D Patnaik Ltd. holding
Notification, dated 17.3.1993 is not applicable to Petitioner’s
establishment being not passed by ‘Appropriate Government’ i.e. State
Government — Held, ‘Appropriate Government’ as defined in CLRA
1970 r/w Section 2(a)(i) of ID Act 1947 in respect of Mines has to be
Central Government and not State Government as held in matter of
Bishra Stone & Lime Co. Ltd. v. Union of India, 2007 (103) CLT 461 —
Since Single Judge in impugned Writ Appeals neither noted complete
definition of ‘Appropriate Government’ in Section 2(a)(i) as to what
includes a “mine” making Central Government as Appropriate
Government, nor noticed referred decision of Division Bench, upholding
validity of very same Notification, dated 17.3.1993, impugned decisions
for these reasons shall be per incuriam — Court’s view fortified from
Judgement of Supreme Court in Sundeep Kumar Bafna v. State of
Maharashtra, 2014 (16) SCC 623 — In view of matter, OJC
No.5277/1994 dismissed — Writ Appeal Nos.355,356 & 357 of 2015

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January 2021 Orissa Mining Corporation Ltd. v. Union of India, Ministry of Labour 413
(DB) (Ori.) (Mohammad Rajiq, C.J.)
succeed and allowed — Consequently OJC 9630/1993, OJC 9632/1993
and OJC 2172/1994 stand dismissed. (Paras 12 to 18)
CASES REFERRED
Bishra Stone & Lime Co. Ltd. v. Union of India, 2007 (103) CLT 461.............................14, 16
Cleaners of Southern Railways v. Union of India, 1987 (1) LLN 480 (SC) ...............................7
Miter Sen & Co. v. Union of India, OJC Nos.372 to 376 of 1985, 388 of 1985, 424 of
1985 and 690 of 1986....................................................................................................9, 14
Sundeep Kumar Bafna v. State of Maharashtra, 2014 (16) SCC 623 ......................................17
Tata Refractories Ltd. v. Union of India, 1992 (73) CLT 373..............................................5, 13
Workmen of FCI v. Food Corporation of India, 1990 (2) LLN 664 (SC)...................................7
Zenith Industrial Services v. Union of India, 1989 (2) LLN 647 (Ori) ..........................5, 10, 13
Anup Kumar Bose, Asst. Solicitor General, A.K. Panigrahi, P.K. Padhi, CGC for
Petitioner.
Srada P. Sarangi & Satyajit Mohanty, Advocates for Respondent.
Finding — O.J.Cs. dismissed — W.As. allowed.
JUDGMENT
Mohammad Rafiq, C.J.
1. Since the Writ Petition (OJC No.5277 of 1994) and all the three Writ
Appeals (W.A. Nos.355, 356, & 357 of 2015) arise out of identical
Notifications, and involve identical questions of law, all these matters were
heard together and are being decided by this common Judgment.
2. Under challenge in OJC No.5277 of 1994, filed by the Petitioner-M/s.
Orissa Mining Corporation Ltd. is validity of the Notification, dated
23.3.1993 under Annexure-1, issued by the Opposite Party-Union of India in
exercise of its power conferred by Section 10(1) of the Contract Labour
(Regulation and Abolition) Act, 1970 (hereinafter in short called ‘the CLRA
Act’), prohibiting employment of Contract Labour in works specified the
schedule therein, in the Manganese Mines in the country, with immediate
effect, in relation to the following:
“1. Raising of mineral, its breaking, seizing and sorting;
2. Screening and jigging at mine site; and
3. Loading and unloading and transporting at mine site.”
The Writ Appeal No.357 of 2015 has been filed by the Union of India,
questioning the correctness of the Judgment, dated 3.4.2015 passed by the
learned Single Judge in OJC No.2172 of 1994, vide which Writ Petition filed
by M/s. Aryan Mining and Trading Corporation (P) Ltd. was allowed in
terms of the Judgment passed by him in OJC Nos.9630 & 9632 of 1993,
holding that the said Notification, dated 23.3.1993 (which is also subject
matter of challenge in above OJC No.5277 of 1994), issued by the Union of

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414 LABOUR LAW NOTES 2021 (1) LLN

India under Section 10(1) of the CLRA Act, abolishing the Contract Labour
system, is not applicable to the Petitioner’s establishment-Manganese Mines.
The Writ Appeals No.355 & 356 of 2015, also filed by the Union of
India, questions correctness of the common Judgment, dated 3.4.2015 passed
by the learned Single Judge in aforesaid OJC Nos.9630 & 9632 of 1993,
vide which the Writ Petitions filed by M/s. Patnaik Minerals (P) Ltd. and
M/s. B.D. Pattnaik Ltd. respectively, were allowed holding that Notification,
dated 17.3.1993 issued by the Union of India under Section 10(1) of the
CLRA Act, abolishing the Contract Labour system, is not applicable to the
Petitioners’ establishment, being not passed by the appropriate Government
i.e., State Government. The impugned Notification, dated 17.3.1993
challenged in the said two Writ Petitions (OJC Nos.9630 & 9632 of 1993),
prohibits Contract Labour in respect of limestone/dolomite mines, in relation
to following activities:
“1. Raising of minerals including breaking, seizing and sorting of limestone/
dolomite, and
2. Transportation of limestone and dolomite which includes loading into and
unloading from trucks, dumper, conveyors and transportation from mine site to
factory;”
3. In order to encapsulate the questions of law involved in these cases, the
factual matrix and contentions of the parties for the sake of convenience
need be delineated separately.
Factual Matrix & Submissions in OJC No.5277 of 1994:
4. The case set up by the Petitioner, M/s. Orissa Mining Corporation Ltd.
in the Writ Petition in brief is that it is a Corporation under the Government
of Orissa and has extensive mining operation of Manganese Ore in the
districts of Keonjhar and Rayagada. Manganese is one of the basic raw-
materials required for manufacturing Iron and Steel. The petitioner-
Corporation engages Contract Labour for raising of Manganese ore,
including breaking, sizing and sorting and also for loading, unloading for
transportation thereof. The licensed Contractors under the Petitioner-
Corporation engage local labourers for such purpose by paying the wages
higher than the rates prescribed under the Minimum Wages Act and also
give them other amenities/benefits similar to those applicable to the
Workmen employed directly. The mining activities of Manganese is not of
permanent nature, and it usually continues till Manganese is available. Once
the Manganese reserve is exhausted, mining activities stop. For that reason,
the petitioner-Corporation engages Contract Labour, since employment of
Permanent Labour is not commercially viable. Notwithstanding the aforesaid
facts, the Government of India in exercise of power under Section 10(1) of
the CLRA Act, has issued the impugned Notification, dated 25.3.1993
prohibiting employment of Contract Labour in Manganese Mines for raising

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January 2021 Orissa Mining Corporation Ltd. v. Union of India, Ministry of Labour 415
(DB) (Ori.) (Mohammad Rajiq, C.J.)
and transportation of minerals, which according to the Petitioner, is unjust
and illegal. Hence, the Writ Petition.
5. Mr. A.K. Panigrahi, learned Counsel for the Petitioner submitted that
the activity of the Transport Contract involving transportation of materials
ready for sale and supply from the mines to places far away from the mines,
by road, is not an activity which is carried on in the mines or a place adjacent
to the mines. Therefore, the activities of Transport Contract do not fall
within the definition of a “Mine” under the Mines Act, 1952 and if so, it
cannot be contended that the ‘appropriate Government’ defined under
Section 2 of the Industrial Disputes Act, 1947 (hereinafter called the ‘ID
Act’) would be the Central Government. The Central Government, not being
the ‘appropriate Government’, has no jurisdiction to issue the impugned
Notification under Section 10 of the CLRA Act. It is submitted that
restrictions imposed by the impugned Notification violate the rights of the
Petitioner to trade as guaranteed under Article 19(1)(g) of the Constitution of
India. Learned Counsel relying upon a Judgment of this Court in Zenith
Industrial Services and ors. v. Union of India & ors., 1989 (2) LLN 647
(Ori) : 1989 (68) CLT 175; submitted that similar Notification, dated
22.12.1979 issued by the Government of India, prohibiting the Contract
Labour in Limestone and Dolomite and Manganese Ores, was quashed by
this Court. Another similar Notification, dated 4.2.1987 issued by the
Central Government imposing restriction in respect of fireclay mines of the
country, which was subject matter of challenge before this Court in Tata
Refractories Ltd. & ors. v. Union of India, 1992 (73) CLT 373, was also
quashed by the Division Bench of this Court. In both these Judgments, it was
held that the Central Government had not complied with the mandatory
requirements of Section 10(2) of the CLRA Act before issuance of the
impugned Notification.
6. The opposite party-Union of India has filed Counter Affidavit
contesting the stand of the Petitioner. It submitted that the CLRA Act is
meant to regulate the employment of Contract Labour in certain
establishments which provides for abolition of Contract Labour in respect of
such categories as may be notified by the appropriate Government. In the
instant case, the Central Government constituted Central Advisory Contract
Labour Board (for short-the CACLB) as per Section 3 of the CRLA Act read
with Rule 3 of CLRA Central Rules, 1971. The CACLB, in exercise of
power conferred by Section 5 of the CLRA Act, constituted a Committee as
per Section 3 of the CLRA Act to go into the question of working of
Contract Labour system in Manganese mines in the country. Considering the
importance of the matter, involving a large number of Manganese mines in
the public and private sector spread all over the country and number of user
industries, a seven member Tripartite Committee was constituted to examine
the question of working of Contact Labour in Manganese Mines in the
country. Various federations of the Employers as well as Employees were

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416 LABOUR LAW NOTES 2021 (1) LLN

represented before the said Committee, which, after making an in depth

study on the Contract Labour system in the Manganese Mines and
considering the availability of essential amenities, submitted its report
recommending prohibition of Contact Labour in certain jobs in the
Manganese Mines of the country. The report of the Committee was placed
before the CACLB and thereafter, keeping in view the Guidelines laid down
in Clauses (a) to (d) of Section 10(2) of the CLRA Act, the Central
Government issued the Notification, dated 23.3.1993, which is impugned in
this Writ Petition. The impugned Notification has been issued in adherence
to Rule 25(2)(v)(a) of the CLRA Central Rules, 1971 for giving equal
treatment to the Contract Labourers, and no rights of any person has been
taken away by this Notification. Further, as per the definition of ‘appropriate
Government’ as contained in the CLRA Act read with provisions under
Section 2 of the ID Act, the ‘appropriate Government’ in respect of mines is
the Central Government. Transportation of minerals at mines site is also an
activity which is incidental to and closely connected with the mining
operations and cannot be separated or treated in isolation and therefore, it
has been included in all similar Notifications in respect of other minerals.
Contention of the Petitioner that the Central Government, not being the
appropriate Government, could not issue the impugned Notification, is not
tenable and is liable to be rejected.
7. Mr. P.K. Padhi, learned Central Government Counsel appearing on
behalf of Opposite Party-Union of India in OJC No.5277/1994, in addition to
reiterating all the arguments taken in the counter filed by the Central
Government, submitted that the Hon’ble Supreme Court has gone into such
issues time and again in BHSE Workers Association v. Union of India, AIR
1985 SC 409; Workmen of FCI v. Food Corporation of India, 1990 (2)
LLN 664 (SC) : AIR 1985 SC 670; Cleaners of Southern Railways v.
Union of India, 1987 (1) LLN 480 (SC) : AIR 1987 SC 777, and held that
the appropriate Government before arriving at its decision is required to
consult the Central Board or the State Board, as the case may be. In the
instant case, the Central Government has followed all the procedures as
prescribed under the law and has thereafter issued the impugned
Notification. Further, it is submitted that the Orissa High Court while
disposing of the Writ Petitions i.e., OJC No.372-376 of 1985 vide common
Judgment, dated 20.11.1990, has already held that such Notification issued
by the Central Government under Section 10 of the Act, prohibiting Contract
Labour in chromite mines, is valid.
Factual Matrix & Submissions : (W.A. Nos.355, 356 & 357 of 2015):
8. The facts giving rise to these Appeals in nutshell are that all the
Respondents are the Companies under the Companies Act. The Respondents
in W.A. Nos.355 & 356 of 2015 are engaged in mining of Limestone and
Dolomite mining. The Respondent in W.A. No.357/2015 carries Manganese

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January 2021 Orissa Mining Corporation Ltd. v. Union of India, Ministry of Labour 417
(DB) (Ori.) (Mohammad Rajiq, C.J.)
Ore mining in different district of Odisha. They dispatch the same to various
steel plants of the country. The Respondents-Companies engage Contract
Labour for raising of Manganese, Limestone, Dolomite (hereinafter referred
as ‘Minierals’) including breaking, sizing and sorting thereof and for
loading, unloading and transportation of the said minerals. According to
them, the mining activities of such minerals are not of permanent or
perennial in nature as the mining activities are carried out only till the
minerals are available. Once the minerals are exhausted, the mining
activities are abandoned. The Respondents-Companies engage Contract
Labours for that purpose. As per definition of ‘appropriate Government’, as
under the CLRA Act, which has been adopted from the definition given
under Section 2 of the ID Act, appropriate Government in these two
establishments, in so far it relates to activities of transportation, is the State
Government. The learned Single Judge, in the impugned Judgment rightly
held that Petitioners’ establishments are covered under Section 2(a)(ii) of the
ID Act and not under Section 2(a)(i) of the ID Act. Hence, the State
Government is the ‘appropriate Government’ in relation to the Petitioners’
establishments for all purposes. The Central Government had no competence
to issue the impugned Notification under Section 10(2) of the CLRA Act.
9. Mr. A.K. Bose, learned Asst. Solicitor General of India appearing on
behalf of the Appellant-Union of India, while adopting the stand taken by the
Appellant in its Counter Affidavit filed in the connected OJC No.5277 of
1994, submitted that the learned Single Judge in the impugned Judgment has
lost sight of the fact that the definition of “Appropriate Government” under
Section 2 (d)(e) of the I.D. Act takes into its ambit “a mine” and the
conclusions arrived at by the learned Single Judge that the Respondents’
establishment do not come under the purview of Section 2(a)(i) of the ID Act
is not correct. Since the impugned Notifications specially prohibit
employment of Contract Labour in the works specified in the schedule that
includes not only excavation of the Limestone, Dolomite and Manganese,
but also its transportation, which are incidental activities, the appropriate
Government for such activities is the “Central Government”. Considering
that the work of mining all those minerals is of permanent nature, the Central
Government after following all the procedures as prescribed under the law,
has rightly issued the impugned Notifications. It is further submitted that the
issues raised before the learned Single Judge with regard to prohibition of
Contract Labours have already been decided by this Court in number of
earlier decisions. This Court in identical Writ Petitions – viz; titled Miter Sen
& Co. v. Union of India & others, OJC Nos.372 to 376 of 1985, 388 of
1985, 424 of 1985 and 690 of 1986, and connected matters, by its Judgment,
dated 20.11.1990 upheld validity of similar Notification, dated 20.11.1984
relating to prohibition of Contract Labour in Chromite Mines. The learned
Single Judge has taken a contrary view ignoring the binding precedent of a
Larger Bench of this Court. The impugned Judgment, having been rendered

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418 LABOUR LAW NOTES 2021 (1) LLN

in ignorance of the relevant provisions of the CLRA Act and ID Act and
having not considered the earlier binding decisions of this Court, being per
incuriam, is unsustainable in law.
10. Refuting the stand taken by the Central Government in these Writ
Appeals, learned Counsel on behalf of the Respondents-Writ Petitioners in
respective Appeals submitted that the Respondents are required to excavate
surface, soil, refuse, spoils, dead stone and ferruginous clay for the purpose
of mining of said minerals. Since all these works are casual in nature, the
Respondents engage contractors from time to time. It is submitted that
Section 10 of the CRLA Act has vested power in the appropriate
Government to prohibit the Contract Labour in any process, operation or
other work in any establishment but such power has to be exercised in
accordance with sub-sections (1) & (2) thereof. The relevant factors
provided under sub-section (2) are required to be strictly adhered to prior to
issuance of such Notifications. In the instant case however, no material has
been placed before this Court to indicate the nature of the consultation the
Appellant had with the Central Board before issuance of the impugned
Notifications. Placing reliance on the Judgment of the Supreme Court in
Catering Cleaners of Southern Railway (supra), learned Counsels on behalf
of the Respondents submitted that decision of the appropriate Government
prohibiting employment of Contract Labour is always subject to Judicial
Review. The impugned Notifications have been issued without satisfying the
mandatory requirements of Sections 10(1) & 10(2) of the CLRA Act.
Therefore, the learned Single Judge, relying on a Division Bench decision of
this Court in Zenith Industrial Services (supra), has rightly allowed the Writ
Petitions filed by the Respondents.
11. We have given our anxious consideration to rival submissions and
perused the materials on record.
12. Although OJC No.5277 of 1994 & W.A. Nos.355, 356 & 357 of 2015
arise out of different Notifications, relating to different minerals, issued by
the Central Government in exercise of its power under Section 10(1) of the
CLRA Act, but the relevant provisions, which are attracted in the present set
of matters being common, are reproduced hereunder for the facility of
reference:
“Contract Labour (Regulation and Abolition Act, 1970:
“10. Prohibition of employment of Contract Labour.— (1) Notwithstanding
anything contained in this Act, the appropriate Government may, after
consultation with the Central Board or, as the case may be, a State Board,
prohibit, by Notification in the Official Gazette, employment of Contract Labour
in any process, operation or other work in any establishment.”
(2) Designated Authority:

Labour Law Notes / January-2021

January 2021 Orissa Mining Corporation Ltd. v. Union of India, Ministry of Labour 419
(DB) (Ori.) (Mohammad Rajiq, C.J.)
(a) The “Appropriate Government” may be Notification in the Official Gazette
appoint a designated authority to advise them on the question whether any
activity of a given establishment is a core-activity or otherwise;
(b) If a question arises as to whether any activity of an establishment is core
activity or otherwise the aggrieved party may make an application in such a
form and manner as may be prescribed, to the appropriate Government for
decision;
(c) The Appropriate Government may refer any question by itself or such
application made to them by any aggrieved party as prescribed in Clause (b), as
the case may be, to the designated authority, which on the basis of relevant
material in its possession, or after making such an enquiry as deemed fit shall
forward the report to the appropriate Government, within a prescribed period
and thereafter the appropriate Government shall decide the question within the
prescribed period.” - Andhra Pradesh Act 10 of 2003, Section 4.
The ‘appropriate Government’ under Section (2)(a) of the CLRA Act, has
been defined as under:
“Appropriate Government” means—
(i) in relation to an establishment in respect of which the appropriate
Government under the Industrial Disputes Act, 1947 (14 of 1947), is the
Central Government, the Central Government;
(ii) in relation to any other establishment, the Government of the State in which
that other establishment is situated;
Section (2)(e) of the CLRA Act, also defined ‘establishment’, which reads as
under:
“establishment” means—
(i) any office or department of the Government or a local authority,
or
(ii) any place Where any industry, trade, business, manufacture or occupation
is carried on;
Industrial Disputes Act, 1947:
Since the definition of the ‘appropriate Government’ has been incorporated
in the Contract Labour (Regulation and Abolition) Act, 1970 by way of
reference from the Industrial Disputes Act, 1947, it would be apposite to
reproduce hereunder the ‘appropriate Government’ contained in Section 2(a)
of the Industrial Disputes Act, 1947:
“(a) “Appropriate Government” means—
(i) In relation to any Industrial Disputes concerning [... ... ...] any industry
carried on by or under the authority of the Central Government. [... ... ...] or by
a Railway Company [or concerning any such controlled industry as may be
specified in this behalf by the Central Government] [[... ... ...] or in relation to

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420 LABOUR LAW NOTES 2021 (1) LLN

an Industrial Dispute concerning [a Dock Labor Board established under

Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of
1948), or the [the Industrial Finance Corporation of India Limited formed &
registered under the Companies Act, 1956) (1 of 1956), or the Employees’
State Insurance Corporation established under Section 3 of the Employees’
State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted
under Section 3-A of the Coal Mines Provident Fund & Miscellaneous
Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees & the State
Boards of Trustees constituted under Section 5-A & Section 5-B, respectively,
of the Employees’ Provident Fund & Miscellaneous Provisions Act, 1952 (19
of 1952), [... ... ...], or the Life Insurance Corporation of India established under
Section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or [the Oil
& Natural Gas Corporation Limited registered under the Companies Act. 1956
(1 of 1956), or the Deposit Insurance & Credit Guarantee Corporation
established under Section 3 of the Deposit Insurance & Credit Guarantee
Corporations Act, 1961 (47 of 1961), or the Central Warehousing Corporation
established under Section 3 of the Warehousing Corporation Act, 1962 (58 of
1962), or the Unit Trust of India established under Section 3 of the Unit Trust
of India Act, 1963, or the Food Corporation of India established under Section
3, or a Board of Management established for two or more contiguous States
under Section 16 of the Food Corporation Act, 1964 (37 of 1964), or [the
Airports Authority of India constituted under Section 3 of the Airports
Authority of India Act, 1994 (55 of 1994)], or a Regional Rural Bank
established under Section 3 of the Regional Rural Banks Act, 1976 (21 of
1976), or the Export Credit & Guarantee Corporation Limited or the Industrial
Reconstruction Bank of India Limited], [the National Housing Bank
established under Section 4 of the National Housing Bank Act, 1987 (53 of
1987)], or an air transport service, or a banking or an Insurance Company], a
mine, an oil-field] [a Cantonment Board,] or a [major port, any Company in
which not less than fifty-one per cent of the paid-up share capital is held by the
Central Government, or any corporation, not being a corporation referred to in
this clause, established by or under any law made by Parliament, or the Central
Public Sector undertaking, subsidiary companies set up by the principal
undertaking and autonomous bodies owned or controlled by the Central
Government, the Central Government, and]
(ii) In relation to any other Industrial Dispute, including the State Public Sector
undertaking, subsidiary companies set up by the Principal undertaking &
autonomous bodies owned or controlled by the State Government, the State
Government;” (Underlying ours)
“Mine” that has been referred to in Section 2(a)(i) of the Industrial
Disputes Act, has been defined in Clause (J) of sub-section (1) of Section 2
of the Mines Act 1952, thus:
“(j) “mine” means any excavation where any operation for the purpose of
searching for or obtaining minerals has been or is being carried on and includes:
(i) all borings, bore holes, oil wells and accessory, crude conditioning plants,
including the pipe conveying mineral oil within the oil fields;

Labour Law Notes / January-2021

January 2021 Orissa Mining Corporation Ltd. v. Union of India, Ministry of Labour 421
(DB) (Ori.) (Mohammad Rajiq, C.J.)
(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course
of being sunk or not;
(iii) all levels and inclined planes in the course of being driven;
(iv) all open cast workings;
(v) all conveyors or aerial ropeways provided for the bringing into or removal
from a mine of minerals or other articles or for the removal of refuse
therefrom;
(vi) all adits, levels, planes, machinery, works, railways, tramways, and sidings
in or adjacent to and belonging to a mine;
(vii) all protective works being carried out in or adjacent to a mine;
(viii) all workshops and stores situated within the precincts of a mine and under
the same management and used primarily for the purposes connected with that
mine or a number of mines under the same management;
(ix) all power stations, transformer substations, converter stations, rectifier
stations and accumulator storage stations for supplying electricity solely or
mainly for the purpose of working the mine or a number of mines under the
same management;
(x) any premises for the time being used for depositing sand or other material
for use in a mine or for depositing refuse from a mine or in which any
operations in connection with such sand, refuse or other material is being
carried on, being premises exclusively occupied by the owner of the mine;
(xi) any premises in or adjacent to and belonging to a mine on which any
process ancillary to the getting, dressing or preparation for sale of minerals or
of coke is being carried on.”
13. The case set up by the Petitioner-M/s. Orissa Mining Corporation Ltd.
in OJC No.5277 of 1994 that the ‘appropriate Government’ in respect of the
transportation of the minerals would be the State Government, is also the
argument which has found favour with the learned Single Judge in the
Judgment impugned in the aforementioned three Writ Appeals. While the
Notification, dated 23.3.1993 impugned in OJC No.5277 of 1994 filed by
M/s. Orissa Mining Corporation Ltd. issued with regard to Manganese
Mines, in Clause-3 of its schedule covers “Loading and unloading and
transporting at mine site.”, Clause-2 of the schedule of the Notification,
dated 17.3.1993 issued with regard to Limestone/dolomite Mines covers
“Transportation of limestone and dolomite which includes loading into and
unloading from trucks, dumper, conveyors and transportation from mine site
to factory”. Factual matrix of the dispute of these matters, despite the
difference in minerals, is substantially identical. What is contended on behalf
of the Petitioner M/s. Orissa Mining Corporation Ltd. in OJC as well as by
the original Writ Petitioners in the Writ Appeals is that since the activities of
transportation do not fall within the definition of a “Mine” under the Mines
Act, 1952, the State Government, and not the Central Government, would be

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422 LABOUR LAW NOTES 2021 (1) LLN

the ‘appropriate Government’ under Section 2(a) of the ID Act. Reliance has
been placed on the Judgment of this Court in Zenith Industrial Services
(supra) and Tata Refractories Ltd. (supra). Both the aforesaid Judgments
dealt with challenge to similar Notifications. Under challenge in Zenith
Industrial Services (supra), was the Notification, dated 15.12.1979 issued by
the Ministry of Labour, New Delhi, Government of India under Section
10(1) of the Contract Labour (Regulation and Abolition) Act, 1970,
prohibiting employment of Contract Labour in the works for overburden,
removal and drilling and blasting in Limestone, Dolomite and Manganese
Mines in the country. The Petitioner in that case contended that the said
Notification was issued by the Central Government without duly complying
with the provisions of Section 10(1) & (2) of the Contract Labour
(Regulation and Abolition) Act, 1970. This Court held that there was nothing
on record to show as to what are the relevant factors that weighed with the
Central Government in issuing the general Notification abolishing the
Contract Labour in the overburden removal and drilling and blasting works
in the limestone, dolomite and manganese mines in the country. The
impugned Notification was therefore quashed. In Tata Refractories Ltd.
(supra), similar Notification, dated 4.2.1987 issued under Section 10 of the
Contract Labour (Regulation and Abolition) Act, 1970 prohibiting the
engagement of Contract Labour in the fireclay mines of the country was
challenged. The stand of the Central Government in that case before this
Court was that it had referred the matter to the Central Advisory Board, who
had in its turn constituted a Committee and that Committee had taken into
account the relevant factors as contained in sub-section (2) of Section 10 of
the CLRA Act, and submitted a report, on the basis of which the Central
Government, exercising its power under Section 10(1) of CLRA Act, issued
the Notification. This Court, relying on the earlier Judgment in Zenith
Industrial Services (supra), held despite several opportunities given to the
Standing Counsel for the Central Government to do so, neither the report of
the Advisory Board nor that of the Committee constituted by the said Board
was produced before the Court, to satisfy as to whether or not the factors
mentioned in Clauses (a) to (d) of Section 10(2) of the CLRA Act were at all
taken into account by the said Committee. The Writ Petition was therefore
allowed and the impugned Notification was quashed.
14. We may at this stage refer to a Division Bench Judgment of this
Court in the case of Bishra Stone & Lime Co. Ltd. v. Union of India, 2007
(103) CLT 461, wherein validity of the very same Notification, dated
17.3.1993, which has been set aside by the learned Single Judge in OJC
Nos.9630 and 9632 of 1993, out of which the Writ Appeals No.355 and 356
of 2015 arise, was upheld. In fact, neither of the parties cited this Judgment,
either before the learned Single Judge or even during hearing of the present
matters. The issues that are involved in the present matters are squarely
covered by the said Judgment. Argument which has found favour with

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January 2021 Orissa Mining Corporation Ltd. v. Union of India, Ministry of Labour 423
(DB) (Ori.) (Mohammad Rajiq, C.J.)
learned Single Judge was specifically dealt with by the Division Bench in
Para-10 of the said Judgment, which is reproduced hereunder:
“10. The contention of the learned Counsel for the Petitioner that the Central
Government having not consulted the Central Advisory Contract Labour Board
as contained in Clauses (b), (c) & (d) of Section 10 of the CLRA Act, the
impugned Notification is vitiated and liable to be quashed has to be rejected.
Central Government has taken the specific stand that before issuing Notification,
dated 17.3.1993 vide Annexure-1 the requirements of the Section were complied
with and the Central Advisory Contract Labour Board was duly consulted.
Keeping with their recommendation, the employment of Contract Labour in
works specified in the schedule to Annexure 1 was issued and therefore there is
no violation of any statutory provision. It has further been stated that the Central
Advisory Contract Labour Board constituted the Committee to make an in-depth
study of the matter and make their recommendation to the Board. The Board on
consideration of the recommendation of the Committee and having done an in-
depth study of the matter made their recommendations to the Central
Government. The stand taken by the Central Government has not been
controverted by the Petitioner. In view of the uncontroverted factual position, the
assertion of the Petitioner that the Central Government had not duly consulted
the Advisory Board before issuing the impugned Notification is without any
basis.”
The question with regard to the validity of Notification, dated 17.3.1993
thus, stood finally concluded by the aforesaid Judgment. Eight identical Writ
Petitions in Miter Sen (supra), repelling similar arguments, while upholding
validity of identical Notification prohibiting Contract Labour in Chromite
mines, were also dismissed by a Division Bench of this Court vide common
Judgment, dated 20.11.1990.
15. Section 3 of the CLRA Act, provides for constitution of a Central
Advisory Contract Labour Board, which has to advise the Government on
matters concerning the Contract Labour system. Rule 3 of the CLRA Central
Rules, 1971, which has been framed under the CLRA Act, provides that the
CACLB shall consist of (a) Chairman to be appointed by the Central
Government, (b) Chief Labour Commissioner, (c) one representative of the
Central Government (d) two persons representing the Railways, (e) five
persons-one representing the Employers in coal mines; two representing the
Employers in other mines and two representing contractors to whom the Act
applies; (f) seven persons- two representing the Employees in Railways, one
representing Employees in coal mines, two representing the Employees in
other mines and two representing the Employees of Contractors to whom the
Act applies. The CACLB in these matters considering a large number of
mines of Manganese, limestone and dolomite, in public and Private Sector
spread all over the country and number of user industries, constituted the
Committees in both the matters to examine the question of working of
Contract Labour. Various federations of the Employers as well as Employees
were represented before the said Committees, which after making in-depth

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424 LABOUR LAW NOTES 2021 (1) LLN

study on the Contract Labour system, considering perennial nature of the

work and availability of essential amenities, submitted their report
recommending prohibition of Contract Labour in certain jobs in mining of
those minerals. As per the assertion of the Central Government, such report
in both the matters was placed before the CACLB. The Board in these
matters, considering the Guidelines laid down in Clauses (a) to (d) of Section
10(2) of the CLRA Act, made its recommendation to the Central
Government which then issued the impugned Notifications. The Central
Government upon satisfying itself that the operation of the mines was a work
of perennial nature and the work of transporting the excavated mineral was
incidental to and necessary for the work of mining, issued the impugned
Notifications. Rule 25(2)(v)(a) of the CLRA Central Rules, 1971 clearly
provides that in cases where the Workmen employed by the Contractor
perform the same or similar kind of work as the Workmen directly employed
by the principal Employer of the establishment, the Wage rates, holidays,
hours of work and other conditions of service of the Workmen of the
Contractor shall be the same as applicable to the Workmen directly
employed by the principal Employer of the establishment on the same or
similar kind of work. The CLRA Act in itself is a piece of social legislation
for protection of the Contract Labourers, who are vulnerable to exploitation
and, as such, it should be liberally construed. The purpose of issuing the
impugned Notification is to give statutory protection to the poor and
unorganized Contract Labourers. The impugned Notifications do not in any
manner interfere with the right of any citizen to practice any profession or to
carry on any occupation, trade or business. It merely prohibits engagement
of Contract Labourers in such works specified in the schedule to impugned
Notification. Therefore, argument of the Petitioner that it has affected the
rights of the Petitioner under Article 19(1)(g) of the Constitution of India,
cannot be countenanced.
16. The issue that appropriate Government for the activities of “Loading
and unloading and transporting at mine site.” in so far as Notification, dated
23.3.1993 assailed in OJC No.5277 of 1994 and the “Transportation of
limestone and dolomite which includes loading into and unloading from
trucks, dumper, conveyors and transportation from mine site to factory;” in
the aforementioned three Writ Appeals, would be State Government as per
Section 2(a)(ii) of the Industrial Disputes Act, 1947, also stands concluded
by the aforesaid Judgment of this Court in Bishra Stone & Lime Co. Ltd.
(supra). Before referring to that Judgment, we may, however, examine the
argument advanced in the Writ Appeals that the impugned Judgment passed
by the learned Single Judge proceeds on misreading of the definition of
‘appropriate Government’ under Section 2(a)(i) of the ID Act. It was argued
that the learned Single Judge has in the impugned Judgment completely
omitted to consider the import of the words “a mine”, specifically included
in the said definition clause. This is because the activities of “Transportation

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January 2021 Orissa Mining Corporation Ltd. v. Union of India, Ministry of Labour 425
(DB) (Ori.) (Mohammad Rajiq, C.J.)
of limestone and dolomite which includes loading into and unloading from
trucks, dumper, conveyors and transportation from mine site to factory;”
were incidental to and closely connected with the main activity of the
mining, i.e. the raising of mineral, its breaking, seizing and sorting of
limestone/dolomite were perennial in nature. The ‘appropriate Government’
as defined in the Contract Labour (Regulation and Abolition) Act, 1970 read
with Section 2(a)(i) of the Industrial Disputes Act, 1947 in respect of mines,
has to be the Central Government and not the State Government. Reference
in this behalf may be made to the following observations of the Division
Bench of this Court in Bishra Stone & Lime Co. Ltd. (Supra).
“8. The next submission of the learned Counsel for the Petitioner is that the
impugned Notification, dated 17.3.1993 issued by the Central Government is
otherwise illegal and ultra vires and is in excess of the jurisdiction so far as it
prohibits employment of Contract Labour for transportation of limestone from
mines site to factory inasmuch as the appropriate Government in respect of such
transportation contractors is the State Government has also to be rejected. We
have already held that the appropriate Government in respect of mines is the
Central Government in view of the clear provision of Section 2(a) of the
Industrial Disputes Act read with Section 2(1)(a) of the CLRA Act and Section
2(1)(f) of the Mines Act. However, it has to be seen whether the work transport
operation said to have been undertaken by the Contract Labour in the mines of
the Petitioner are within the purview and ambit of the mining operation as
claimed. The question is whether process, operation or other work like
transportation of sized stone from the mining faces into railway wagons,
transportation of boulder from mining faces to the crushing plants, transportation
of sized stone converted from boulder into the railway wagons or loading plants
and transportation of rejected stone and spoils from mining faces for
development of working face comes within the activities of mining operation as
defined under the Act.
9. A reference has already been made to the provision of Section 2(j) of the
Mines Act and the definition of “Mine” in the Mines Act has been quoted herein
before. A perusal of Clause (v) of Section 2(j) would make it clear that all
conveyors or aerial ropeways provided for bringing into or removal from a mine
of minerals or other articles or for the removal of refuse therefrom are included
within the category of mining operation. Similarly under Clause-vi thereof all
adits, levels, planes, machinery, works, railways, tramways, and sidings in or
adjacent to and belonging to a mine are also inclusive of the definition.
Similarly, under Clauses (x) & (xi), any premises for the time being used for
depositing sand or other material for use in a mine or for depositing refuse from
a mine or in which any operations in connection with such sand, refuse or other
material is being carried on, being premises exclusively occupied by the owner
of the mine and any premises in or adjacent to and belonging to a mine on which
any process ancillary to getting, dressing or preparation for sale of minerals or of
coke is being carried on are also covered within the scope and ambit of mine as
defined under the Act. In view of the provision of law, there cannot be any doubt
that the operation in question, the manner of operation and the process are
ancillary and/or incidental to the mine and as such have to be held to be activities
coming within the purview of the Act and, therefore, the impugned Notification

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426 LABOUR LAW NOTES 2021 (1) LLN

(Annexure-1) issued by the Central Government in exercise of powers conferred

under sub-section (1) of Section 10 of the Contract Labour (Regulation and
Abolition) Act, 1970, prohibiting employment of Contract Labour in limestone/
dolomite mines and transportation of limestone and dolomite which includes
loading into and unloading from trucks, dumpers, conveyors and transportation
from mine site to factory as mentioned in Annexure-1 has to be held as valid and
cannot be termed as illegal, arbitrary or beyond the powers conferred under the
statute on the Central Government.”
17. A Judgment can be per incuriam if any provision of a statute, rule or
regulation, was not brought to the notice of the Court. Moreover, a decision
or Judgment can also be per incuriam if it is not possible to reconcile its
ratio with that of a previously pronounced Judgment of a co-equal or Larger
Bench. Since the learned Single Judge in the decision impugned in three
Writ Appeals has neither noted the complete definition of “appropriate
Government” in Section 2(a)(i) what includes “a mine” making Central
Government as the appropriate Government, nor noticed the above referred
to binding decision of the Division Bench, upholding validity of very same
Notification, dated 17.3.1993, the impugned decision for these reasons shall
be per incuriam. We are in taking that view fortified from the Judgment of
the Supreme Court in the case of Sundeep Kumar Bafna v. State of
Maharashtra and another, 2014 (16) SCC 623, reproduced relevant Para-19
hereunder:
“19. It cannot be over-emphasised that the discipline demanded by a precedent or
the disqualification or diminution of a decision on the application of the per
incuriam rule is of great importance, since without it, certainty of law,
consistency of rulings and comity of Courts would become a costly casualty. A
decision or Judgment can be per incuriam any provision in a statute, rule or
regulation, which was not brought to the notice of the Court. A decision or
Judgment can also be per incuriam if it is not possible to reconcile its ratio with
that of a previously pronounced Judgment of a co-equal or Larger Bench; or if
the decision of a High Court is not in consonance with the views of this Court. It
must immediately be clarified that the per incuriam rule is strictly and correctly
applicable to the ratio decidendi and not to obiter dicta. It is often encountered in
High Courts that two or more mutually irreconcilable decisions of the Supreme
Court are cited at the Bar. We think that the inviolable recourse is to apply the
earliest view as the succeeding ones would fall in the category of per incuriam.”
18. In the light of the view that we have taken of in the matter, the OJC
No.5277 of 1994 is liable to be dismissed and the same is accordingly
dismissed. The Writ Appeal Nos.355, 356 & 357 of 2015 deserve to succeed
and are accordingly allowed. Consequently, OJC No.9630 of 1993, OJC
No.9632 of 1993 and OJC No.2172 of 1994 shall stand dismissed. There
shall be however no order as to costs.
  

Labour Law Notes / January-2021

January 2021 Sudhir Chandra Sah v. State of Bihar 427
(Pat.) (Anjani Kumar Sharan, J.)
2021 (1) LLN 427 (Pat.)
IN THE HIGH COURT OF PATNA
Anjani Kumar Sharan, J.
C.W.J.C. No.11941 of 2017
21.5.2020
Sudhir Chandra Sah .....Appellant
Vs.
State of Bihar and others .....Respondents
BIHAR PENSION RULES, 1950 Rule 139 — Deduction from Pension —
Recovery of alleged loss from gratuity and amount of leave encashment
without holding enquiry — Whether sustainable — Petitioner employed
as Overseer and was transferred from time to time — Superannuated on
30.9.1999 while working as Junior Engineer at PWD, Road Division,
Saharsa — While in service, it was alleged against him in 1989 about
shortage of bitumen — No FIR filed but an entry made in his service
record after six years in 1995 of alleged shortage — Respondent 2 issued
Order, dated 21.5.2012 to Petitioner informing that he has been found
guilty of shortage of 58.81 MT Bitumen valued at `2,39,944 and ordered
5% deduction of Pension as per provision 139 of Pension Rules — No
Departmental proceedings initiated except an entry in service records —
Petitioner represented to Respondent to review their decision but in vain
— On challenge, held, It is undisputed that no Departmental Enquiry
initiated or FIR filed by department — Recovery made twice, one from
Pension and another from gratuity and leave encashment — It is well
settled by catena of Judgments by Supreme Court that right to receive
Pension and gratuity could not be taken away without authority of law as
these rights are covered under right to property under Article 311(1) of
Constitution of India — Right to receive Pension held to be right to
property protected under Article 300-A even after repeal of Article 31(1)
as held in State of West Bengal v. Haresh C Banerjee, 2006 (7) SCC 651 —
Counsel for Respondents not countenance passing of Second Order and
there being no authority to initiate Second Enquiry after earlier
punishment to deduct 5% of pension lifelong accepted by Petitioner —
Act of alleged misconduct not survived — Impugned Order held to be
wholly without jurisdiction and illegal and quashed — Writ Petition
allowed — Respondents directed to release amount of gratuity and leave
encashment within two months failing which Petitioner entitled to 9%
Interest. (Paras 8, 9, 12 & 14 to 17)
CASES REFERRED
D.S. Nakara v. Union of India, 1983 (1) LLN 289 (SC)...........................................................13
Deokinandan Prasad v. State of Bihar, 1971 (2) SCC 330.......................................................12

Labour Law Notes / January-2021

428 LABOUR LAW NOTES 2021 (1) LLN

Dr. Hira Lal v. State of Bihar, C.A. No.1677-1678 of 2020, dated 18.2.2020 .........................14
Dwarka Nath v. Income-Tax Officer, Special, AIR 1966 SC 81..............................................11
Manju Jaiswal v. State of Bihar, 2009 (3) PLJR 560...............................................................10
RBF Rig Corporation, Mumbai v. Commissioner of Customs (Imports), Mumbai, 2011 (3)
SCC 573 ............................................................................................................................11
Shanti Choubey v. State of Bihar, 2004 (4) PLJR 236 ..............................................................9
State of Jharkhand v. Jitendra Kumar Srivastava, 2013 (4) LLN 56 (SC) ................................14
State of West Bengal v. Haresh C Banerjee, 2006 (7) SCC 651 ..............................................14
Sanjay Kumar Ghosarvey, Advocate for Appellant.
Manoj Kumar Ambastha, Senior Counsel for Respondents.
Finding —
JUDGMENT
1. Heard the parties through the virtual Court proceeding.
2. By way of filing the present Writ application, the Petitioner, inter alia,
has sought direction to the Respondents to make payment of leave
encashment amounting to `2,14,144 and gratuity amount of `81,711 along
with Interest @ 18% per annum.
(ii) Direction to the Respondents to make payment of the leave
encashment amount as well as the gratuity amount in view of the office
order issued by the Engineer-in-Chief, Road Construction Department,
which was communicated to the Petitioner vide Memo No.2144(E) dated
21.5.2002 (Annexure-3 of the Writ Petition).
(iii) Any other relief or reliefs to which the Petitioner is entitled may
kindly be given.
3. Learned Counsel for the Petitioner submits that the Petitioner was
appointed to the post of Adhidarshak (Overseer) at Kahalgaon Block,
Bhagalpur on 1.10.1964 and thereafter time to time transferred several
places and lastly superannuated on 30.9.1999 while working to the post of
Junior Engineer under the office of Executive Engineer, P.W.D., Road
Division, Saharsa. Learned Counsel for the Petitioner further submits that
the Petitioner had filed one C.W.J.C. No.7498 of 1998 for payment of
differences of salary which was disposed of on 3.11.1999 with a direction to
the Respondent No.2 to make calculation and thereafter to pay the
differences of salary but the same was not paid thereafter one Contempt
application was filed being M.J.C. No.1320 of 2000 then only the payment
of differences of salary was paid to the Petitioner after his retirement.
Learned Counsel for the Petitioner further submits that while working in
Godda (now in Jharkhand), there was an allegation of shortage of 58.81 M T
Bitumen in the name of Petitioner and for which the Petitioner had written
several letters to each and every authorities that the shortage is manipulated

Labour Law Notes / January-2021

January 2021 Sudhir Chandra Sah v. State of Bihar 429
(Pat.) (Anjani Kumar Sharan, J.)
and arithmetical mistake being recorded by the then Junior Engineer in
collusion of other authorities, who had taken the charge of bitumen from the
Petitioner in the year 1989. He further submits that if there would have been
shortage of bitumen, no any F.I.R. was lodged against the Petitioner rather
entry was made in his service book after six years in the year 1995. The
Petitioner was also filed C.W.J.C. No.701 of 1999 in the Hon’ble Patna High
Court but after separation of Bihar, the case was transferred to the Hon’ble
Jharkhand High Court at Ranchi but the fate of the case is not known to the
Petitioner as he was not able to persuade the matter in Ranchi due to his
illness.
4. Learned Counsel for the Petitioner submits that Respondent No.2 had
issued an office Order on 21.5.2012 vide Office Order No.192 which was
communicated to the Petition vide Memo No.2144(E) dated 21.5.2002,
whereby it has been stated that after due verification of show cause
submitted by the Petitioner he has been found guilty of shortage of 58.81
MT Bitumen hence, the cost of Bitumen which total comes to `2,39,944 was
ordered to be deducted from 5% Pension amount from the Pension of
Petitioner in accordance with provision of 139 of Bihar Pension Rules
(Annexure-3 of the Writ Petition). Learned Counsel for the Petitioner further
submits that prior to his retirement, there was no proceeding pending with
respect to allegation of shortage except to have entered the same in the
service book of the Petitioner therefore, taking decision or punishment is
illegal. The Petitioner has immediately submitted a detail representation
through registered post on 11.6.2002 saying after three years of his
retirement and without any inquiry or verification of the facts placed by the
Petitioner the order has been passed which required being review
(Annexure-4 of the Writ Petition). Learned Counsel for the Petitioner further
submits that one hand the Petitioner was asked to show cause by the
Respondent No.2 and Respondent No.2 had issued an office order on
21.5.2012 vide office order No.192, which was communicated to the
Petitioner vide Memo No.2144(E), dated 21.5.2002 (Annexure-3 of Writ
Petition) whereby it has been stated that after due found guilty of shortage of
58.81 MT Bitumen, the cost of Bitumen total comes to `2,39,944 was
ordered to be deducted from 5% pension amount from the portion of the
Petitioner in accordance with provision of 139 of Bihar Pension Rules and
other hand, Respondent No.4 has deducted the amount of `2(Two) Lacs
from the Leave Encashment amount and `39,000 from the Gratuity amount
(Annexure-5 series of Writ Petition), which was done in gross violation of
the order of Respondent No.2 contained in Annexure-3 of this Writ
application therefore, entire recovery from the Leave Encashment and
Gratuity is illegal and arbitrary because no any proceeding has been initiated
against the Petitioner.

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430 LABOUR LAW NOTES 2021 (1) LLN

5. Per contra, the Respondent No.4 had filed the Counter Affidavit
stating therein that the Petitioner was posted as a Junior Engineer, Road
Division, Godda, shortage of 58.81 M.T. of bitumen was found, cost of
which was assessed as `2,39,944 and for which charge as pending in the
Department, as such under Letter No.4778(E), dated 19.9.2001 (Annexure-1
to the Writ Petition). Show cause was served upon the Petitioner as to why
5% of pension be not deducted from his Pension in view of provisions made
under Rule 139 of Bihar Pension Rules. He further submits that under
Annexure-2 to the Writ Petition, the Petitioner replied the show cause and
upon receipt of the same it was considered in the Department with the
available documents and after due consideration, the reply to the show cause
was rejected and under office order, as contained in Annexure-3 to the Writ
Petition, 5% Pension was reduced in view of provisions made under Rule
139 of Bihar Pension Rules. He further submits that under the office order
no. 13 of 02-03, Annexure-5 series to the Writ Petition, provisional Gratuity
for `2,14,144 was sanctioned to the Petitioner. Similarly, under the office
Order No.12/02-03, Annexure-5 series to the Writ Petition, unutilized earned
leave of 188 days, amounting to `81,711.80 was sanctioned to the Petitioner.
However, as `2,39,944 was found recoverable from the Petitioner on account
of shortage of bitumen as such `2,00,000 was recovered from the amount of
provisional Gratuity and `39,944.80 from amount of unutilized earned leave
under office Order No.13/02-03 and 12/02-03, Annexure-5 series to the Writ
Petition.
6. Learned Counsel for the State submits that the Petitioner has not been
challenged the recovery order (Annexure-5 series). There is no pleading
challenging Annexure-5 series, This Hon’ble Court on its own, without a
specific pleading challenging Annexure-5 series, must not interfere with
Annexure-5 series.
7. Learned Counsel for the Respondents conceded at the bar that the
Order passed by the authorities for recovery of an amount of `2,39,944 to be
deducted from the amount of leave encashment and gratuity payable to the
Petitioner may not legally sustainable as the Petitioner has been proceeded
for the same self-charge earlier pertaining to misappropriation of the said
amount, when the Competent Authorities took recourse to Section 139 of
Bihar Pension Rules and imposed a punishment, reducing of 5% of Pension
payable to the Petitioner throughout his life but since there is no challenge in
the Writ Petition questioning the order of recovery, albeit the order has been
annexed as contained in Annexure-5 series passed by the Competent
Authorities, no positive direction for release of entire amount of leave
encashment and gratuity could be passed as the Petitioner has accepted these
orders, therefore, the Court does not require to pass any order in the present

Labour Law Notes / January-2021

January 2021 Sudhir Chandra Sah v. State of Bihar 431
(Pat.) (Anjani Kumar Sharan, J.)
case. In view of the above, the writ is liable to be dismissed without any
relief to the Petitioner.
8. Considering the submission of the parties in the present case, it is
admitted fact that no proceeding was initiated against the Petitioner either to
judicial or departmental before/after his retirement on 30.9.1999. It is a fact
that there was shortage of bitumen but no Departmental proceeding or any
F.I.R. has been lodged against the Petitioner. It is admitted fact by
Annexure-3, the authority has passed the order for recovery of `2,39,944
was ordered to deduct for 5% of the Pension amount from the Pension of the
Petitioner (Annexure-3).
9. From the aforesaid facts and circumstances, it is appeared that there is
twice recovery from the Petitioner one from the Pension and another from
the gratuity and leave encashment. Learned Counsel for the Petitioner has
relied upon the Judgment of this Court in the case of Shanti Choubey v.
State of Bihar, 2004 (4) PLJR 236, in which in Paragraph-11 of the said
Judgment, it has been held that “I am unable to appreciate the said
submission of the learned Counsel for the State. In view of the law settled
that recovery is not permissible even after the retirement of a Government
servant from service except after taking recourse to the provisions, contained
in Rule 43(b) of the Bihar Pension Rules and that too only if the case is
covered by the rider clause of the said provision, which provides that (a)
such departmental proceedings, if not instituted while the Government
servant was on duty either before retirement or during re-employment; (i)
shall not be instituted save with the sanction of the State Government; (ii)
shall be in respect of any event which took place not more than four years
before the institution of such proceedings.”
10. In the same similar facts and circumstances, in the case of Manju
Jaiswal v. State of Bihar, 2009 (3) PLJR 560, it has been held that without
any proceeding being initiated it is not open to the State Government to
effect the recovery from the retiral benefits of the Government servant after
his retirement. In this case also after retirement of the Petitioner,
Respondents alleged that some adjustment were required to be made on
account of some shortage of 58.81 M.T. of bitumen was found. It is admitted
fact that neither any departmental nor Judicial proceeding was initiated
during his service. However, after retirement, recovery of the same is not
justified and is permissible in law.
11. The submission advanced by the Counsel for the Respondents
appears to be attractive at first blush but after having given my anxious
consideration to submission advanced by the Respondents on deeper
scrutiny, the submission is not acceptable, in the peculiar facts and

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432 LABOUR LAW NOTES 2021 (1) LLN

circumstances of the present case, as the remiss on the part of the Counsel to
make a direct challenge to these orders, would not deprive the power of Writ
Court under Article 226 of the Constitution of India to exercise extraordinary
jurisdiction to do complete and substantial justice and to hold that in case of
grant of post-retirement benefit, the relief sought for in the Writ Petition for
grant of entire leave encashment and gratuity would subsumed the relief of
quashing an order, which would be an impediment in grant of the full
payment of leave encashment and gratuity, as the authorities having
exercised power of imposing a harsh punishment of deducting 5% of
Pension earlier for same self-charge, for an indefinite period, the subsequent
exercise of power by a separate order as contained in Annexure-5 series of
Writ Petition, ordering for recovery of the alleged misappropriated amount
from leave encashment and gratuity is illegal and perverse as initiation of
second limited enquiry resulting in passing of order as contained in
Annexure-5 series on same-self charge is not permissible as there can be
only one enquiry in respect of a charge for a particular misconduct and a
person could not be vexed twice for the same charge and allowing such
practice would not be in the interest of public service as law does permit
Departmental Enquiry and not harassment. The Hon’ble Supreme Court in
Dwarka Nath v. Income-Tax Officer, Special, AIR 1966 SC 81, held that
Article 226 of the Constitution of India is couched in such a wide language
to enable the High Court to reach injustice wherever it is found and to mold
the relief to meet the peculiar and complicated requirement to do complete and
substantial justice. Further, my view if fortified by another Judgment of
Supreme Court reported in RBF Rig Corporation, Mumbai v. Commissioner
of Customs (Imports), Mumbai, 2011 (3) SCC 573, wherein it was held that
High Court in exercise of power under Article 226 of the Constitution of
India, could always mold relief in such a manner as to meet out justice to
aggrieved person.
12. Further, it is well settled by a catena of Judgment of the Hon’ble
Supreme Court that right of receive Pension and gratuity could not be taken
away without authority of law as right to receive pension and gratuity of a
Public servant has been held to be covered under right to property under
Article 311(1) of Constitution by the Constitution Bench of Supreme Court
in Deokinandan Prasad v. State of Bihar and others, 1971 (2) SCC 330.
Relevant Paragraphs 30, 31 & 33 are quoted herein below:
“30. The question whether the Pension granted to a Public servant is property
attracting Article 31(1) came up for considerable before the Punjab High Court
in Bhagwant Sing v. Union of India, AIR 1962 Punj 503. It was held that such a
right constitutes “property” and any interference will be a breach of Article 31(1)
of the Constitution. It was further held that the State cannot by an executive
order curtail or abolish altogether the right of the Public servant to receive

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January 2021 Sudhir Chandra Sah v. State of Bihar 433
(Pat.) (Anjani Kumar Sharan, J.)
Pension. This decision was given by a learned Single Judge. This decision was
taken up in Letters Patent Appeal by the Union of India. Letters Patent Bench in
its decision in Union of India v. Bhagwant Singh, ILR 1965 Punj 1, approved the
decision of the learned Single Judge. The Letters Patent Bench held that the
Pension granted to a Public servant on his retirement is “property” within the
meaning of Article 31(1) of the Constitution and he could be deprived of the
same only by an authority of law and that Pension does not cease to be property
on the mere denial or cancellation of it. It was further held that the character of
Pension as “property” cannot possibly undergo such mutation at the whim of a
particular person or authority.
31. The matter again came up before a Full Bench of the Punjab and Haryana
High Court in K.R. Erry v. The State of Punjab, ILR 1967 Punj & Har 278). The
High Court had to consider the nature of the right of an officer to get Pension.
The majority quoted with approval the principles laid down in the two earlier
decisions of the same High Court, referred to above, and held that the Pension is
not to be treated as a bounty payable on the sweet will and pleasure of the
Government and that the right to superannuation pension including its amount is
a valuable right vesting in a Government servant. It was further held by the
majority that even though an opportunity had already been afforded to the officer
on an earlier occasion for showing cause against the imposition of penalty for
lapse or misconduct on his part and he has been found guilty, nevertheless, when
a cut is sought to be imposed in the quantum of pension payable to an officer on
the basis of misconduct already proved against him, a further opportunity to
show cause in that regard must be given to the officer. This view regarding the
giving of further opportunity was expressed by the learned Judges on the basis of
the relevant Punjab Civil Service Rules. But the learned Chief Justice in his
dissenting judgment was not prepared to agree with the majority that under such
circumstances a further opportunity should be given to an officer when a
reduction in the amount of pension payable is made by the State. It is not
necessary for us in the case on hand to consider the question whether before
taking action by way of reducing or denying the Pension on the basis of
Disciplinary action already taken, a further notice to show cause should be given
to an officer. That question does not arise for consideration before us. Nor are we
concerned with the further question regarding the procedure, if any, to be
adopted by the authorities before reducing or withholding the pension for the
first time after the retirement of an officer. Hence, we express no opinion
regarding the views expressed by the majority and the minority Judges in the
above Punjab High Court decision on this aspect. But we agree with the view of
the majority when it has approved its earlier decision that pension is not a bounty
payable on the sweet will and pleasure of the Government and that, on the other
hand, the right to Pension is a valuable right vesting in a Government servant.
33. Having due regard to the above decisions, we are of the opinion that the right
of the Petitioner to receive pension is property under Article 31(1) and by a mere
executive order the State had no power to withhold the same. Similarly, the said
claim is also property under Article 19(1)(f) and it is not saved by sub-article (5)
of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying
the Petitioner right to receive pension affects the fundamental right of the
Petitioner under Articles 19(1)(f) & 31(1) of the Constitution, and as such the
Writ Petition under Article 32 is maintainable. It may be that under the Pension

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434 LABOUR LAW NOTES 2021 (1) LLN

Act (Act 23 of 1871) there is a bar against a Civil Court entertaining any Suit
relating to the matters mentioned therein. That does not stand in the way of Writ
of mandamus being issued to the State to properly consider the claim of the
Petitioner for payment of pension according to law.”
13. The aforesaid Judgment was followed in D.S. Nakara and others v.
Union of India, 1983 (1) LLN 289 (SC) : 1983 (1) LLJ 104. Relevant
Paragraphs 20, 29 & 31 are quoted herein below:
“20. The antiquated notion of Pension being a bounty, a gratuitous payment
depending upon the sweet will or grace of the Employer not claimable as a right
and, therefore, no right to pension can be enforced through Court has been swept
under the carpet by the decision of the Constitution Bench in Deoki Nandan
Prasad v. State of Bihar and others, 1971 (1) LLJ 557, wherein this Court
authoritatively ruled that Pension is a right and the payment of it does not depend
upon the discretion of the Government but is governed by the rules and a
Government servant coming within those rules is entitled to claim Pension. It
was further held that the grant of Pension does not depend upon any one’s
discretion. It is only for the purpose of quantifying the amount having regard to
service and other allied matters that it may be necessary for the authority to pass
an order to that effect but the right to receive pension flows to the officer not
because of any such order but by virtue of the rules. This view was reaffirmed in
State of Punjab and another v. Iqbal Singh, 1976 (2) LLJ 377.
29. Summing up it can be said with confidence that Pension is not only
Compensation for loyal service rendered in the past, but Pension also has a
broader significance, in that it is a measure of socio-economic justice which
inheres economic security in the fall of life when physical and mental prowess is
ebbing corresponding to aging process and, therefore, one is required to fall back
on savings. One such saving in kind is when you give your best in the heyday of
life to your Employer, in days of invalidity, economic security by way of
periodical payment is assured. The term has been judicially defined as a stated
allowances or stipend made in consideration of past service or a surrender of
rights or emoluments to one retired from service. Thus the Pension payable to a
Government Employee is earned by rendering long and efficient service and
therefore can be paid to be a deferred portion of the Compensation or for service
rendered. In one sentence one can say that the most practical raison d’etre for
pension is the inability to provide for oneself due to old age. One may live and
avoid unemployment but not senility and penury if there is nothing to fall back
upon.
31. From the discussion three things emerge (i) that pension is neither a bounty
nor a matter of grace depending upon the sweet will of the Employer and that it
creates a vested right subject to 1972 rules which are statutory in character
because they are enacted in exercise of powers conferred by the proviso to
Article 309 and Clause (5) of Art. 148 of the Constitution; (ii) that the pension is
not an ex gratia payment but it is a payment for the past service rendered; and
(iii) it is a social welfare measure rendering socio-economic justice to those who
in the heyday of their life ceaselessly toiled for the Employer on an assurance
that in their old age they would not be left in lurch. It must also be noticed that
the quantum of Pension is a certain percentage correlated to the average

Labour Law Notes / January-2021

January 2021 Sudhir Chandra Sah v. State of Bihar 435
(Pat.) (Anjani Kumar Sharan, J.)
emoluments drawn during last three years of service reduced to ten months under
liberalized Pension scheme. Its payment is dependent upon an additional
condition of impeccable behaviour even subsequent to retirement, that is, since
the cessation of the Contract of service and that it can be reduced or withdrawn
as a Disciplinary measure.”
14. Thus right to receive Pension has been held to be a right to property
protected under Article 300-A even after repeal of Article 31(1) by the
Constitution (Forty-Fourth Amendment) 1978 w.e.f. 20.6.1979 as held in
State of West Bengal v. Haresh C Banerjee and ors., 2006 (7) SCC 651;
and subsequently reiterated in State of Jharkhand v. Jitendra Kumar
Srivastava, 2013 (4) LLN 56 (SC) : 2013 (12) SCC 210; and Dr. Hira Lal v.
State of Bihar, C.A. No.1677-1678 of 2020, dated 18.2.2020.
15. Thus, the Counsel for the Respondents did not countenance the
passing of the second order and there being no authority to initiate second
enquiry for same self-charge after the earlier punishment Order passed by
the Respondents to deduct 5% of Pension payable to the Petitioner lifelong
was accepted by the Petitioner and acted by the Respondent when they
reduced Pension by 5%, the act alleged to be a misconduct did not survive
for consideration and thus the order contained in Annexure-5 series is wholly
without jurisdiction and illegal.
16. Having considered the submission of learned Counsel for the parties,
in view of the settled principle of law as settled by Apex Court and by this
Court in decision referred above, this Court is of the opinion that in the given
fact of the case, Letter No.13/02-03 and 12/2002-03, dated 23.5.2002
(Annexure-5 series) issued by the Respondent No.4, Executive Engineer,
PWD., Saharsa is hereby quashed.
17. The Writ Petition is allowed and Respondent authorities are directed
to release the amount of portion of gratuity and leave encashment recovered
by Annexure-5 series within two months of date of production/receipt of this
order, failing which the Petitioner is entitled for 9% of the interest on the
aforesaid amount from the date of filing of the Writ Petition on till date of
actual payment.
  

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436 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 436 (Telan.)

IN THE HIGH COURT OF TELANGANA
P. Naveen Rao, J.
W.P. Nos.42417 & 42418 of 2018, 1734, 8475, 8485, 8491, 8494, 8524,
8732, 8741, 8916, 9106, 9564, 9994, 10300, 10679, 10757, 10763, 11090,
11213, 11287, 12316, 12755, 13008, 14898, 14914, 14923, 14950, 15238,
15251, 15255, 15271, 15289, 17049, 17245, 17246, 17252, 17525, 17565,
17577, 17594, 17669, 17686, 17689, 17715, 17719, 17751, 17885, 17928,
17930, 17953, 17956, 17963, 17980, 18000, 18118, 18162, 18277, 18278,
18303, 18334, 19244, 19245, 19350, 19919, 20740, 20744, 20745, 20751,
21068, 21222, 21646, 21647, 21678, 21839, 22097, 22347, 22349, 22436,
22618, 22624, 22900, 23486, 23495, 23502, 23512, 23534, 23541, 23542,
23543, 23578, 24326, 24389, 25063, 25064, 25657, 25688, 26407, 27033,
27560, 27563, 28175, 28562 of 2019, 1008, 1118, 1689, 2083, 2610 & 3713
of 2020
19.5.2020
Marikukkala Ramulti …..Petitioner
Vs.
Chairman & Managing Director, Singareni Collieries Company Ltd. and others
…..Respondents
MINES ACT, 1952 (35 of 1952), Section 9-A — MINES RULES, 1955,
Rules 29-B, 29-J, 29-K, 29-M & 82-A — Facilities for occupational
health survey — Periodical Medical Examination — Appeal for re-
examination — Unfit persons not to be employed — Right to file Appeal
against assessment of Medical Authority — Entitlement to retire and get
allowances — MoU, dated 21.2.2000 — National Coal Wage Agreement-
VI — Provision of alternate employment on Medical grounds — Right
of dependent to employment — Remedy of Appeal against decision of
Corporate Medical Board — Denial of remedy of Appeal — Whether
fatal — Petitioners aggrieved by decision of Respondent-SCCL in
providing them alternative job on surface instead of retiring them on
Medical grounds by extending other benefits including employment to
dependent — Held, Act recognize providing alternate employment, if
Employee is declared unfit to hold present job due to ill health that too
if unfitness directly attributed to employment — Act and Rules do not
prohibit alternative employment rather endorse provision of alternative
employment — No merit in contention that denial of Retirement on
Health grounds violates Factories Act, Employees Compensation Act
and Disability Act — Act, Rules and NCWA-VI all envisage providing
of dependent employment only if Employee’s health status makes him
unemployable and not otherwise — In all cases, Petitioners have not

Labour Law Notes / January-2021

January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 437
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
reached stage of unemployability and are fit to do alternative job —
Hence, they cannot insist upon Retirement and dependent employment
— An Employee can be retired and dependent employment can be
provided only if he is declared unemployable — If any Employee
aggrieved by assessment of Fitness made by Medical Authority of
Employer, he can prefer Appeal — Consent of Employer to file Appeal
not envisaged by Act or Rules — Without availing remedy of Appeal,
Petitioners opted to institute present Petitions raising several grounds —
Non-furnishing of Assessment Report of Medical Board is no ground
against not availing remedy of Appeal — In absence of attributing mala
fides, it cannot be said that Medical Board made wrong assessment —
Contention that without consent of Employee, no other job be given to
him, not tenable as none of Circulars/OMs have been challenged —
Further Item No.4 of MoU, dated 21.2.2000 provide for alternative
employment — This was agreed by majority Union and binding on all
Employees — Hence, no consent of Employee required for alternative job
— It is prerogative of Employer to use services of Employee in whatever
manner he requires in larger interest of Company — Employer, instead
of terminating services of Petitioners, providing alternative jobs with
protection of emoluments — It cannot be said that their Service
conditions are affected to their disadvantage — Further there is no
compulsion on Employees to accept alternative jobs and they can seek
Retirement from service — Hence, if an Employee is declared unfit to do
job held by him, Respondent is competent to offer alternate job —
Dependent employment can be provided, only if Employee is declared
unemployable — Decision of Respondent calls for no interference —
Writ Petitions dismissed. (Paras 22, 34, 49, 52, 53, 55 to 62)
CASES REFERRED
Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil Corporation Ltd., 1991 (1)
SCC 4 .............................................................................................................................47.1
Bharat Cooking Coal Ltd. v. Md. Alam Ansari, 2009 SCC Online JHAR 96............................5
Bhawani Prasad Sonkar v. Union of India, 2011 (3) LLN 37 (SC) .......................................29.3
Bhimlal Mahato v. Eastern Coalfields Ltd., 2019 SCC Online Cal. 6214 .................................5
CCE & Customs v. Prabhat Singh, 2012 (13) SCC 412 .......................................................29.4
Director of Education (Secondary) v. Pushpendra Kumar, 1998 (3) LLN 47 (SC) ...............29.2
Girish Deo Majhi v. Eastern Coalfields Ltd., 2018 SCC Online Cal. 4866 ...............................5
ITC Ltd. Workers’ Welfare Assn. v. ITC Ltd., 2002 (3) SCC 411 .......................................47.3
Manager, Burhar Colliery No.3 of South Eastern Coalfields Ltd. v. Usant Ram, 2001 SCC
Online MP 478 ....................................................................................................................5
Surthi Devi v. Central Coal Field Ltd., 2019 SCC Online JHAR 473........................................5
Transmission Corporation v. P. Ramachandra Rao, 2006 (2) LLN 826 (SC)........................47.2
Umesh Kumar Nagpal v. State of Haryana, 1994 (2) LLN 420 (SC) ....................................29.1
V. Siva Murthy v. State of Andhra Pradesh, 2008 (13) SCC 730 ........................................7, 32
S. Surender Reddy, Advocate for Petitioner.
J. Sreenivasa Rao, SC for Singareni C., Advocate for Respondents.
Finding — W.Ps. dismissed.

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438 LABOUR LAW NOTES 2021 (1) LLN

JUDGMENT
1. Petitioners are employed by the Singareni Collieries Company Limited
(hereinafter referred to as ‘the SCCL’). Claiming that they were not keeping
good health, they applied to subject them to medical examination to test their
fitness to continue in the employment. Accordingly, Petitioners were
examined by the Corporate Medical Board (the Board) of the SCCL. The
Board found that Petitioners are not fit to work in the job held by them, for
most of them in the underground mine. However, the Board declared them
fit to work on the surface instead of underground/another surface job.
Accepting the report of the Board, the Petitioners were declared as medically
unfit to continue in the job held by them at the time of Medical examination
and provided alternative job on the surface. Petitioners are not satisfied with
the course adopted by the SCCL Management and instituted these Writ
Petitions. Petitioner claim that having declared them unfit to hold the present
job, they should be retired on Medical grounds and their dependent should
be provided employment.
2. In this batch of Writ Petitions, based on the prayers sought, they can be
grouped into three categories. For convenience, in each category prayer in
one Writ Petition is extracted, i.e., W.P. No.42417 of 2018 (Category I),
W.P. No.10757 of 2019 (Category II) and W.P. No.17245 of 2019 (Category
III).
(i) Category I cases are: W.P. Nos.42417/2018, 42418/2018, 11287/2019,
17885/2019, 2083/2020 & 3713/2020.
Prayer in W.P. No.42417 of 2018 reads as under:
“... to issue a Writ Order or Direction more particularly a Writ of Mandamus
declaring the action of the 4th Respondent in declaring me as medically fit for
duties as per the result declared on 18.7.2018 without conducting proper Medical
examination by the specialist even though the Petitioner is not able to perform
his duties in view of various ailments and not sending the Petitioner to Corporate
Medical Board for medical reexamination as per the representation submitted by
him on par with other similarly situated Employees as illegal arbitrary abuse of
process of law violation of Principles of Natural Justice and discrimination and
set aside the result of the Corporate Medical Board, dated 18.7.2018 in so far as
the Petitioner is concerned who was shown at Sl No.187 and consequently direct
the Respondents to conduct Medical reexamination on the Petitioner as per the
directions issued by this Hon’ble Court in Writ Appeal No.1080 of 2017 and
batch, dated 6.9.2017 and W.P. No.38451 of 2015 and batch, dated 22.6.2016 by
considering the representation submitted by him in the interest of justice and
pass.”
(ii) Category II cases are: W.P. Nos.10757, 107639, 12316, 15238,
15251, 15289, 17049, 21646, 21647, 21678, 21839, 27560, 27563/2019
& 2610/2020.

Labour Law Notes / January-2021

January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 439
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
Prayer in W.P. No.10757 of 2019 reads as under:
“…to issue a Writ Order or Direction more particularly one in the nature of Writ
of Mandamus declaring the decision, dated 21.5.2019 of the Respondents
Corporate Medical Board in declaring the Petitioner as Medical Unfit for Under
Ground and Fit to work as General Mazdoor on surface intended with a view to
avoid dependant employment to the Family Member as per existing scheme
which benefit was provided to similar to the Petitioner provided dependant
employment thereby denying to extend the said benefit to the Petitioner as
wholly illegal unjust unconstitutional violative of Articles 14, 191(g) of the
Constitution of India contrary to the provisions of Mines Act 1952 and Rules
1955 as well Corporate Medical Rules clarification, dated 17.5.2013 Circular,
dated 9.3.2019 and amounts to forcible continuity in service on surface and
consequently direct the Respondents to forthwith discharge the Petitioner from
service and to provide dependant employment to the Petitioner-Family Member
as per Law and pass.”
(iii) Category III cases are: W.P. Nos.17245, 17246, 17252, 17525,
17565, 17577, 17594, 17669, 17686, 17689, 17715, 17719, 17751,
17928, 17930, 17953, 17956, 17963/2019, 17980, 18000, 18118, 18162,
18277, 18278, 18303, 18334, 24326, 26407, 27033/2019, 2083,
3713/2020 & 17885/2019 [W.P. Nos.2083, 3713/2020 & 17885/2019
also forming part of category 1].
Prayer in W.P. No.17245 of 2019 reads as under:
“...to issue Writ or Direction more particularly one in the nature of Writ of
Mandamus declaring the action of the Respondents in issuing the Letter No.Ref
No.CRP/PER/IR/C/081/903, dated 5.6.2019 to the Petitioner to work as a
General Mazdoor on surface is illegal arbitrary against the Mines Act, 1952 its
Rules, 1955 against the National Coal Wages Agreement and violative of the
Rights Guaranteed by the Constitution of India and consequently declare that the
Petitioner is medically invalidated as per the Mines Act, 1952 Rules, 1955
National Coal Wages Agreement and also as per the circular of the Respondents
vide Ref. CRP/Per/IR/C/081/305, dated 9.3.2018 and further directed the
Respondents to provide dependent employment to the Petitioners family and to
pass.”
2.1. Though, there is some variation in the prayers sought in the Writ
Petitions, in substance, Petitioners are aggrieved by the decision of the
Respondent-SCCL in providing them alternative job on the surface instead
of retiring them on Medical invalidation grounds by extending all other
benefits, including provision of dependent employment, having declared as
medically unfit to perform the duties and responsibilities hitherto performed
by them in the post held by them at the time of Medical examination. The
orders declaring them as unfit to perform the jobs held by them and orders
appointing them to alternative posts on the surface are challenged in these
Writ Petitions. Having regard to the issues involved, all the learned Counsel
requested to hear these cases together.

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440 LABOUR LAW NOTES 2021 (1) LLN

3. As the issues for consideration in all these writ petitions are same, they
are taken up together, heard learned Counsel and decided by this Common
Order.
4. Heard learned Counsel for Petitioners Sri. Ch. Venkat Raman, Sri.
Srinivas Rao Pothuri and Sri. S. Surender Reddy and learned Special
Government Pleader, Sri. A. Sanjeev Kumar attached to the office of learned
Additional Advocate General, for SCCL.
5. Submissions on behalf of Petitioners:
(I) Submissions of learned Counsel Sri. Ch. Venkat Raman:
(1) The employment in SCCL is governed by the Indian Mines Act, 1952
(for brevity, the Act) and the Mines Rules, 1955 (for brevity the Rules)
made thereunder and the National Coal Wage Agreements (NCWA).
According to Rule 29-M of the Rules, read with Paragraph 9.4.0 of
National Coal Wage Agreement VI, once an Employee is declared as
unfit for employment in the mines, such Employee has to be retired from
service on Medical grounds and should be provided with all
consequential benefits and the question of offering alternative
employment does not arise. He would submit the very action of SCCL in
declaring the Petitioners as unfit to work underground and declaring them
as fit to work on surface and providing alternative employment on the
surface is illegal.
(2) By referring to Circular Ref. No.CRP/PER/IRPM/C/081/218, dated
7.4.2015, he would submit that detailed procedure is laid down in the said
circular regarding Medical examination of the Employees by Corporate
Medical Board, but said procedure is not observed and in mechanical
manner, the Employees are declared as unfit to work underground. If the
Medical examination is conducted strictly in accordance with the Circular
instructions, the major grievance of the Petitioners would be answered.
He would also submit that for many Employees the findings of the
Corporate Medical Board and reasons to declare them as unfit to work
underground and fit to work on the surface were kept in the dark, except
making available a tabulated Statement of Employees declared as
‘fit/unfit/fit for surface job’. Unless Medical Report is furnished to
individual Employee, he can not work out his remedies and by such
actions, grave prejudice is caused to the Employees.
(3) He would further submit that as per Circular Ref.
No.CRP/PER/IR/C/081/305, dated 9.3.2018, ‘medical invalidation’
means a person totally incapacitated to work; therefore, dependent
employment has to be provided when an Employee is declared medically
invalidated even to work underground. He would further submit that as
per the Orders of the Government notified vide Circular Ref.

Labour Law Notes / January-2021

January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 441
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
No.CRP/PER/IR/C/081/306, dated 9.3.2018, 16 diseases are covered for
assessment of suitability of Employee. The list is comprehensive and if
Corporate Medical Board examines the fitness of the Employees strictly
in accordance with parameters laid down in the Circular, dated 9.3.2018,
the Petitioners’ cannot be declared as medically fit even to do surface job.
(4) He would further submit that the National Coal Wage Agreement
(NCWA) is binding on the SCCL. Whereas, the definition of ‘medically
unfit’ in Circular, dated 9.3.2018 is contrary to the definition provided in
NCWA. As per the SCCL, Circular only when an Employee is totally
incapacitated, i.e., unemployable, he would be retired from service
extending all benefits. Whereas, terms of NCWA, once an Employee is
declared as medically unfit, he has to be retired from service by extending
all benefits flowing there from, and is not necessary that Employee
should be totally incapacitated-unemployable.
(5) Further, Memorandum of Settlement, dated 21.2.2000 was arrived
under Section 12(3) of the Industrial Disputes Act, 1947 by the
Management and Workmen. Item 4 of this Settlement is exhaustive and
covers all cases where Employee is declared as unfit to perform duties of
the post held by him prior to declaration as unfit, and invariably
Employee has to retire on Medical invalidation grounds and benefits of
such Retirement should be extended to the Employee.
(6) He would submit that issues agitated in these Writ Petitions were not
considered in W.P.(PIL) No.19 of 2017 and there was no discussion on
binding nature of National Coal Wage Agreement (NCWA) on SCCL.
(7) He would further submit that employment in SCCL is also governed
by Factories Act, 1948, Employees Compensation Act, 1923 and the
Persons With Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 2016. These enactments specify list of injuries
sufferance of which are classified as incapable to do any other job. The
injuries/ailments suffered by Petitioners are covered by the said list.
(8) He would further submit that Rule 82 of the Rules prescribe
occupational diseases as provided in Employees Compensation Act,
1923. Rule 82-A deals with disabilities allowance which is again relatable
to Schedule-III of Employees Compensation Act, 1923. Diseases
mentioned therein are treated as accidents under the Employees
Compensation Act and therefore once a person is declared as suffering
with a particular ailment, the question of providing other employment
does not arise.
(9) He would further submit that once an Employee is declared as
medically unfit to hold the job in which he was working at the time of

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442 LABOUR LAW NOTES 2021 (1) LLN

medical examination alternative employment cannot be thrusted on him

without his willingness.
(10) He would further submit that by Circular, dated 29.6.2014,
Corporate Medical Board was constituted. However, for no justifiable
reason or cause, the remedy of Appeal against decision of Corporate
Medical Board is withdrawn. By referring to the procedure adopted by
the other companies, he would submit that hierarchy of Assessment
Boards are constituted, where an Employee can ventilate his grievances
on wrong assessment of fitness but no such mechanism is created by the
SCCL.
(11) Learned Counsel Sri. Venkat Raman placed reliance on following
decisions:
(i) Bharat Cooking Coal Ltd. v. Md. Alam Ansari, 2009 SCC Online
JHAR 96;
(ii) Manager, Burhar Colliery No.3 of South Eastern Coalfields Ltd.
v. Usant Ram, 2001 SCC Online MP 478;
(iii) Surthi Devi v. Central Coal Field Ltd., 2019 SCC Online JHAR
473;
(iv) Bhimlal Mahato v. Eastern Coalfields Ltd., 2019 SCC Online Cal.
6214; and
(v) Girish Deo Majhi v. Eastern Coalfields Ltd., 2018 SCC Online Cal.
4866.
(II) Submission of learned Counsel Sri. Srinivas Rao Putluri:
(1) Learned Counsel Sri. Srinivasa Rao Putluri, would submit that the
entire exercise of Medical examination by Corporate Medical Board is
farcical. More than 200 Employees were asked to appear before the
Board on a single day. It would be impossible for the Board to examine
and assess the health condition of such large number of Employees on a
single day. This would clearly show that Medical examination exercise
was undertaken mechanically and assessment was made depending on
personal preferences and prejudices of the authorities, and Medical
Certificates were issued declaring them as unfit to do underground job as
per their whims and choices and do not reflect actual Medical condition.
This is causing lot of heart burn to Employees who have genuine claims
but their claims are not properly assessed.
(III) Submissions of learned Counsel Sri. Surender Reddy:
He would submit that Petitioners are forced to work though Medical
condition do not permit them to work. He would submit that to overcome
the obligation to provide dependent employment, SCCL is resorting to

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 443
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
declaring Employees as fit to alternative job, even though Respondent-
Company is aware that they cannot work in alternative job also. He
would further submit that there is total lack of transparency in assessment
of health by Respondent-Company and arbitrary decisions are made as
per the whims and fancies of the Corporate Medical Board and
Competent Authority.
(IV) All the learned Counsels have submitted that though Rule 29-J vests
right in an aggrieved Employee to prefer appeal, the same is deprived to
Petitioners.
6. Submissions of learned Special Government Pleader representing
learned Additional Advocate General, on behalf of SCCL:
(1) He submitted that SCCL issued circular on 20.12.2016 introducing a
scheme known as ‘Voluntary Retirement Scheme on Health Reasons’.
The scheme envisaged provision of employment to the dependant if an
Employee seeks retirement on health grounds. Validity of the said
scheme was challenged before this Court in WP (PIL) No. 19 of 2017.
Division Bench of this Court by Order, dated 16.3.2017 declared the
scheme as unconstitutional. Following the Judgment of this Court, the
scheme was amended. The relevant amendment would prescribe that to
provide dependant employment, person has to be declared totally
incapacitated on Medical grounds i.e., unemployable, thereby becoming a
burden on the family. Only on such declaration, dependent of that
Employee would be granted employment. Whenever medical condition of
an Employee makes him unemployable, and dependent has to be
provided employment, the dependent employment is provided to the post
of Badli Worker (underground) if dependant is male and Badli Worker
(Surface) if dependant is female.
(2) Further, another significant aspect brought out by this Circular is, if
an Employee is declared unfit to work underground, he would be
provided employment in the post of Badli Worker on surface. However,
he would be granted pay protection of the post held by him at the time of
Medical examination. By referring to the post held by Petitioner in W.P.
No.9994 of 2019, he would submit that Petitioner was working as
‘support-man’, carries higher emoluments compared to Badli Worker.
After he was declared unfit to work underground, said Petitioner was
given employment as Badli Worker on the surface and the pay and
emoluments drawn by him in the earlier post are protected. Thus, insofar
as Employee is concerned, no inconvenience is caused to him with
reference to emoluments and other allowances payable to him.
(3) According to learned Special Government Pleader, Rule 29-B of the
Rules deal with Medical examination. According to sub-rule (a), initial
Medical examination has to be conducted before the Employee joins

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444 LABOUR LAW NOTES 2021 (1) LLN

service and as per sub-rule (b) periodical Medical examination has to be

conducted on every Worker, Employed in the mine, at an interval of five
years. He would further submit that though there was no requirement to
subject Employees for Medical examination in between two periodical
Medical examinations, the Management has taken decision to accept the
request of an Employee for Medical examination even before expiry of
five years and was subjected to Medical examination to assess his fitness.
If he is declared fit, he would be continued to do the same work. On the
contrary, if he is declared unfit to do a particular job, his fitness to do
alternative job would be assessed and if the Board declares him fit to do
another job, it would be provided. He would submit that transparent
assessment system is evolved to assess the suitability of Employee to a
job on Medical grounds.
(4) On the issue of remedy of Appeal on assessment of health condition
of an Employee, learned Special Government Pleader would submit that
the Appeal remedy provided by Rule 29-J is available only in cases
where contingency provided in Rule 29-B-(b) is attracted. Rule 29-B (b)
envisages periodical assessment of health condition of an Employee and
such assessment is to be undertaken at an interval of five years. During
such periodical Medical examination, if the Employee is not satisfied
with the assessment of his health condition, he can avail remedy of
Appeal envisaged by Rule 29-J. In the cases on hand, this Rule is not
attracted as the assessment of fitness of the Employee is not as
contemplated by Rule 29-B (b). The requests of individual Employees are
entertained as and when made in between periodical assessments and this
is in addition to the statutory assessment required as envisaged by Rule
29-B(b). Thus, in the cases on hand, the availment of remedy of appeal
before the Appellate Medical Board under Rule 29-J does not arise.
Further, as noted above, according to learned Special Government
Pleader, within SCCL at various levels assessment of health of the
individual is made and said assessment takes place objectively.
(5) According to learned Special Government Pleader, Rule 29-M(1) is
exhaustive and deals with all contingencies of fitness of Employees.
According to this Rule, if an Employee is declared as unfit to work in a
particular assignment, he can be allowed to perform any other
assignment. It only prohibits further employment of unfit persons.
According to learned Special Government Pleader, the scheme
formulated by Respondent-Company to adjust the Employee declared as
unfit to work underground, but declared as fit in alternative post on the
surface is in tune with the scheme of Rules 1955.
(6) Learned Special Government Pleader mentioned procedure being
followed in assessing the fitness of an Employee whenever a request is
made. Employee has to make an application for Medical examination to

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 445
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
the Manager under whom he is working. Manager, in turn, refers to the
Medical Officer, Medical Officer is required to make a Preliminary
Assessment of the health condition of the Employee. On making such
assessment, he would be referred to Area Hospital. The Area Hospital
makes an assessment of his fitness. The Area Hospital can declare the
Employee as fit to continue to work. Against such declaration, the
aggrieved Employee can avail the remedy of Appeal before the Corporate
Medical Board. If the Area Hospital finds that health condition of
Employee needs further assessment, it would refer him to the Main
Hospital. The Main Hospital on further assessment would refer it to the
Corporate Medical board. The Corporate Medical Board comprises of
experts in various branches of medicine. On assessment of the health
condition of the Employee it would declare the Employee as fit/unfit to
do underground job/unfit to do any job. Based on the report submitted by
the Corporate Medical Board, the Competent Authority takes further
steps. Thus, the assessment of health condition of the Employee is made
at various levels by experts. On due assessment of the condition of the
Employee, he would be retired from service or would be provided
alternative employment. In this context, he has referred to Paragraph 11
of Circular, dated 7.4.2015. According to learned Special Government
Pleader, Clause 9.4.0 of National Coal Wage Agreement VI is applicable
only if the Employee is assessed to have permanent disability. The
reading of heading itself would make this very clear. Whereas, in these
Writ Petitions, Petitioners are found fit for alternative job and, therefore,
this Clause is not attracted. According to learned Special Government
Pleader, even Rule 29-M contemplates alternative job. Therefore,
Petitioners cannot say alternative job cannot be offered to them.
(7) Learned Special Government Pleader would submit that in view of the
decision of the Division Bench in WP (PIL) No.19 of 2017, the
dependent employment can be provided only if Employee is assessed as
totally incapacitated/unemployable and would become burden to his
family. Directions of the Division Bench are based on the principles laid
down by Hon’ble Supreme Court in V. Siva Murthy v. State of Andhra
Pradesh, 2008 (13) SCC 730. He would further submit that Paragraph
9.4.0 of Chapter-IX of National Coal Wage Agreement-VI, only requires
to provide dependant employment in case of general physical debility of
an Employee to perform the duties and responsibilities hitherto assigned
to him. This agreement does not prohibit the employer to provide
alternative employment if Employee is declared as fit to do any other job,
as in that case, Employee has not acquired unemployable status to
become a burden to his family.
(8) Learned Special Government Pleader would submit that office
Memorandum, dated 9.3.2018 does not list out diseases. It only envisages
procedure of assessment by Corporate Medical Board. With reference to

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446 LABOUR LAW NOTES 2021 (1) LLN

contention of learned Counsel for Petitioners that there is a list of

diseases and assessment of Employee has to be made, by following the
said list, he would submit that whenever an Employee requests for
Medical examination, his health condition would be assessed irrespective
of disease he is suffering from and his suitability to work in the same post
or suitability to work in alternative post would be assessed and SCCL has
not confined the health condition only to the diseases specified in the
Workmen Compensation Act.
(9) On the aspect of obtaining consent before providing alternative
employment, he would submit that obtaining consent for alternative
employment would arise only when the alternative employment is lower
in rank and would also result in reduction of wages. SCCL is protecting
the wages and emoluments drawn by the Employee in his/her earlier post.
Therefore, there is no requirement to obtain consent to take the
alternative employment. In this contest he also relies on the
Memorandum of Settlement arrived under Section 12(3) of the Industrial
Disputes Act.
(10) He would further submit that Item No.4 of the Memorandum of
Settlement incorporates the determination of fitness of an Employee for
alternative job and categorically asserts provision of alternative
employment. Paragraph-6 of the Office Memorandum, dated 29.5.2000
issued in pursuant to Memorandum of Settlement is also very clear on
this aspect. This Office Memorandum is not challenged. Once an
Employee is declared as unfit to hold present post, his suitability to hold
another post has to be assessed by the Medical Board. Without such
assessment and clearance by the Medical Board, Employee cannot be
provided alternative job. Thus, such assessment is mandatory and is part
of the process to implement memorandum of Settlement. He would
further submit that Memorandum of Settlement, envisaged provision of
employment as General Mazdoor as alternative job, did not envisage
wage protection, but the corporation on its own, decided to grant wage
protection. On the wage protection he refers to Circular, dated 20.1.2018.
7. Reply by learned Counsel for Petitioners:
(1) Learned Counsel for Petitioners Sri. Venkat Raman would submit that
several other companies which are also governed by the National Coal
Wage Agreement and which have similar nature of duties and
responsibilities have established the hierarchy of assessment authorities
to assess the health condition of an Employee and have created Appellate
Medical Boards, whereas, in SCCL no remedy is provided within the
company against the decision of the Corporate Medical Board, causing
lot of hardship and suffering to the Employees. He would submit that
SCCL is also party to National Coal Wage Agreement and said
agreement shall prevail over any settlement arrived at under Section

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 447
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
12(3) of the Industrial Disputes Act. In terms of NCWA, if an Employee
is declared as medically unfit, such declaration has to be for the
employment in the Respondent organization but not to a particular job.
(2) He would further submit that the Medical reports do not indicate the
nature of disability and nature of assessment made by the Corporate
Medical Board and the assessment report is not furnished to the
Employee to workout his remedies. The Corporate Medical Board has to
indicate the nature of disability. Nature of disability has relevance, having
regard to the provisions of Employees Compensation Act and benefits
flowing there from. By not furnishing the assessment made by the
Corporate Medical Board and also the nature of disability, grave injustice
is caused to the Employees.
(3) He would further submit that on assessment of health of Petitioners,
even though Petitioners are declared as incapable to perform the duties
and responsibilities of the job in which they were working, they are not
allowed to retire by providing all the benefits flowing out of such
retirement and further injustice is caused to them by not assigning work
in the alternative employment and they are only made to attend to the
office. He would submit that this action of the Respondents would
amount to arbitrary exercise of power, humiliation, disrespect to honour
and dignity, and circumventing the law governing the service conditions
of the Employees working in coal mines.
(4) Learned Counsel for Petitioners Sri. Srinivas Rao Pothuri submitted
that Corporate Medical Board is not a Statutory Board, therefore,
assessment made by the Corporate Medical Board has no legal sanctity.
Petitioners have to be subjected to Medical examination as required by
the Mines Act and Rules made thereunder and National Coal Wage
Agreement. He would also emphasize that there is change of attitude of
the Management since 2018 on account of introduction of dependent
employment.
8. I have carefully considered the respective submissions, the relevant
provisions of the Mines Act, 1952 (the Act) and the Mines Rules, 1955 (the
Rules), the NCWAs, Memorandum of Understanding, dated 21.2.2000 and
the decisions cited at the Bar.
9. Following issues arise for consideration:
(i) Whether the Mines Act and the Mines Rules prohibit provision of
alternative employment on being declared medically unfit to hold the
present post ?
(ii) When dependent employment can be provided ?

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448 LABOUR LAW NOTES 2021 (1) LLN

(iii) Is there a conflict in Memorandum of Settlement, dated 21.2.2000

arrived under the Industrial Disputes Act and the Clause 9.4.0 of National
Coal Wage Agreement-VI ?
(iv) If there is a conflict, which shall prevail ?
(v) Whether Petitioners have remedy of Appeal against decision of
Corporate Medical Board and the same is deprived and denial of remedy
of Appeal is fatal to entire action of SCCL ?
(vi) Whether consent of Employee is mandatory to provide alternate job ?
(vii) Whether Rule 82-A of the Rules is violated and if so, such violation
vitiates entire action of SCCL ?
10. Before considering the issues, it is necessary to clear one aspect. The
SCCL is a Company owned by the State and Union Governments. The
Telangana State has 51% stake in the Company and remaining 49% is held
by the Union Government. It is involved in extracting coal. It is bound by
the Mines Act, the Mines Rules, the NCWAs, all Welfare Legislations and
more particularly, the Industrial Disputes Act, 1947.
1st Issue:
11. In substance, it is the assertion of Petitioners that once an Employee
is declared as unfit to hold the present job due to assessment of unfitness on
health grounds, Employee has to be retired on Medical grounds and all
benefits flowing there from should be extended including dependant
employment and the question of providing alternative employment does not
arise.
12. Working in coal mines is hazardous. Mining requires digging of the
earth to extract various minerals including coal. To extract coal the
Company has to dig deep, form deep pits/tunnels. Working conditions in
pits/tunnels is not same as on the surface. There will be less oxygen, no
sunlight, the pits/tunnels may generate other gases. Higher standard of health
and fitness is required to work in a coal mine. Further, even if they were
healthy when they joined the employment, due to working conditions or age
or other factors, their health and fitness be affected/and no longer be
desirable to work in the mines. With failing health, working in the mine may
be fatal.
13. The Mines Act, 1952 (the Act) is enacted with main objective to
regulate conditions of employment and safety of the Employees working in
the Mines. It aims to ensure safe working conditions and welfare of the work
force of the mines. By subsequent amendments, the scope of application of
the Act is widened and more stringent measures are introduced to ensure
safety and welfare of work force working in mines. Thus, the Mines Act and
the Mines Rules (the Rules) made thereunder prescribe stringent standards to

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 449
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
maintain and operate the mines and to ensure health and welfare of the
Employees. Having regard to the hazardous working conditions greater
thrust is on health and fitness of the Employees and the well being of the
family.
The relevant provisions of the Act:
14. Chapter-V of the Act deals with health and safety. Chapter-VI deals
with hours of work and limitation of employment. Chapter-VII deals with
leave with wages.
15. Section 9-A was introduced by Act 42 of 1983. It is part of Chapter-
II, which deals with Inspectors and certifying surgeons. Section 9-A, to the
extent relevant, reads as under:
“Section 9-A. Facilities to be provided for occupational health survey.— (1) The
Chief Inspector or an Inspector or other Officer authorised by him in writing in
this behalf may, at any time during the normal working hours of the mine or at
any time by day or night as may be necessary, undertake safety and occupational
health survey in a mine after giving notice in writing to the manager of the mine;
and the owner, agent or manager of the mine shall afford all necessary facilities
(including facilities for the examination and testing of plant and machinery, for
the collection of samples and other data pertaining to the survey and for the
transport and examination of any person employed in the mine chosen for the
survey) to such Inspector or Officer.
………
(5) If, after the Medical treatment, the person referred to in sub-section (4) is
declared medically unfit to discharge the duty which he was discharging in a
mine immediately before presenting himself for the said examination and such
unfitness is directly ascribable to his employment in the mine before such
presentation, the owner, agent and manager shall provide such person with an
alternative employment in the mine for which he is medically fit:
Provided that where no such alternative employment is immediately available,
such person shall be paid by the owner, agent and manager disability allowance
determined in accordance with the rates prescribed in this behalf:
Provided further that where such person decides to leave his employment in the
mine, he shall be paid by the owner, agent and manager a lump sum amount by
way of disability compensation determined in accordance with the rates
prescribed in this behalf.” (emphasis supplied)
16. Sub-section (1) of Section 9-A vests power in the Chief Inspector/
Inspector/Authorized Officer to undertake safety and occupational health
survey. Other Sub Sections deal with Medical examination of Employees,
protection of their wages during the period of such examination and right of
Employee to undergo medical treatment if found unfit to discharge.
Relevant provisions of the Rules:

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450 LABOUR LAW NOTES 2021 (1) LLN

17. Section 58 of the Act vests power in the Central Government to

formulate rules. In exercise of this power, the Mines Rules, 1955 (the Rules)
were made. These Rules further the objectives of the Act that is to ensure
health and personal safety and well being of the Employees. In these cases,
elaborate submissions are made by relying on Rules 29-B, 29-J & 29-M.
They form part of Chapter IV-A of the Rules. This Chapter deals with
‘Medical examination of persons employed or to be employed in Mines’.
Further, Chapter IV-A envisages Medical examination at an interval of five
years and steps to be taken by Employer on the result of Medical
examination. To the extent relevant the rules read as under:
“29-B. Initial and Periodical Medical examinations.— After such date or dates
as the Central Government may by Notification in the Official Gazette appoint in
this behalf, the Owner, Agent or Manager of every mine shall make
arrangements—
(a)(i) for the initial Medical examination of every person employed in the
mine, within a period of five years of the date so notified and the said
examination shall be so arranged over a period of five years that one fifth of
the persons employed at the mine undergo the examination every year;
………
(b) for the periodical Medical examination thereafter of every person employed
in the mine at intervals of not more than five years.
………
29-J. Appeal for re-examination.— (1) Where as a result of an initial Medical
examination under Clause (a), or of periodical medical examination under
Clause (b) of Rule 29-B, a person has been declared unfit for employment in
mines or in particular category of mines or in any specified operations in mine,
he may, within thirty days of the receipt by him of a copy of the Certificate
referred to in sub-rule (2) of Rule 29-F, file an Appeal with the Manager of the
mine against the declaration aforesaid, and request for a Medical re-examination
by an Appellate Medical Board constituted under Rule 29-K.
(2)(a) The Manager shall arrange to have the Appellant medically re-examined
by the Appellate Medical Board within thirty days of the receipt of the
Appeal, and shall give to the Appellant fifteen days’ prior notice of the
Medical re-examination by the Appellate Medical Board in Form Q.
(b) A person, who for any reasonable cause, fails to submit himself for a
Medical re-examination in accordance with the notice given to him under
Clause (a), shall be given another notice in Form R in similar manner.
(c) A person who has, without reasonable cause, fails to submit himself for a
Medical re-examination in accordance with a notice given to him under
Clause (b) shall cease to be in employment at the mine or in a particular
category of mines or in any specified operations in mine, as the case may
be, after the expiry of thirty days from the last date notified for his
medical re-examination.

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 451
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
(3) In respect of every medical re-examination by the Appellate Medical Board,
the Appellant shall pay such fees and the Medical examination shall be
conducted in such manner as may be determined by the Appellate Medical
Board. In case the Appellate Medical Board finds him fit for employment in
mines, the fees shall be reimbursed in full to the Appellant by the Owner of the
mine where he is employed.
29-M. Unfit persons not to be employed.— (1) Where, as a result of an initial
Medical examination made under Clause (a), or of a Periodical Medical
examination under Clause (b) of Rule 29-B a person has been declared unfit for
employment in mines or in a particular category of mines or in any specified
operations in mine, he shall not be employed or continue to employed in mine or
in the category of mines or on the operations specified, after the expiry of thirty
days from the date of his Medical examination unless he has filed an Appeal
under sub-rule (1) of Rule 29-J against the declaration.
(2) Where the person concerned has filed an Appeal under sub-rule (1) of Rule
29-J, but has been declared by the Appellate Medical Board, after a Medical re-
examination, to be unfit for employment in mines or in a particular category of
mines or on any specified operations in mines, he shall not be employed or
continue to be employed in mine or in the category of mines or on the operations
specified, after the expiry of thirty days from the date of his medical re-
examination by the Appellate Medical Board:
Provided that, if the Medical Officer carrying out the initial Medical
examination under Clause (a), or the periodical examination under Clause (b) of
Rule 29-B, or the Appellate Medical Board carrying out the Medical re-
examination of persons already in employment is of the opinion that the
disability of the person examined is of such a nature and degree that it will not
seriously affect or interfere with the normal discharge of his duties, it may
recommend his continuation in employment in the mine for a period not
exceeding six months during which such person may get his disability cured or
controlled and submit himself for another Medical examination and be declared
fit.” (emphasis supplied)
18. Rule 29-B requires Medical examination before a person is employed
in the mines to assess his fitness to work in a mine [Rule 29(B)(a)]; and
periodical (every five years) Medical examination of an Employee to assess
his fitness to do the job he is holding [Rule 29(B)(b)]. During the course of
such periodical Medical examination if he is found unfit, he should not be
allowed to work.
19. Rule 29-J vests right in the Employee to prefer Appeal against
decision of Employer holding him unfit for employment in the mine or in a
particular category of mine or in any specified operations in the mine and
request for re-examination by Appellate Medical Board. Rule 27-K provides
for constitution of Appellate Medical Board.
20. Rule 29-M deals with consequences when a person is declared unfit
to hold a post in the Mine or when an Employee is declared unfit to hold the

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452 LABOUR LAW NOTES 2021 (1) LLN

post occupied by him at the time of Periodical Medical examination. It

prohibits employment of unfit person in the Mines.
21. Having regard to respective submissions, a closer look at Section 9-A
of the Act and the Rule 29-M of the Rules is imperative. Sub-section (5) of
Section 9-A comes into operation if Employee does not regain fitness even
after treatment and is declared unfit to discharge duty of the post held by him
at the time of Medical examination and mandates the Employer to provide
alternative employment. Thus, Act also recognizes providing alternate
employment if the Employee is declared as unfit to hold the present job due
to his health condition and that too, only if the unfitness is directly
attributable to the employment. Providing alternative job is again subject to
fitness to hold another job. Rule 29-M(1) of the Rules gives effect to this
object of the Act. It deals with various contingencies. It envisages declaring
an Employee unfit to work in a mine/in a particular category of mines/in
specified operation of a mine. Thus, the Act and the Rules do not prohibit
alternative employment and on the contrary positively endorse provision of
alternative employment.
22. Incidentally it was contended that denial of retirement on health
grounds violates Factories Act, Employees Compensation Act, 1923 and the
Disabilities Act, 2016. I see no merit in the said contention. These are
welfare legislations enacted with avowed object to safeguard the Workmen/
Employees from exploitation by the Employer and to give Statutory
protection if they suffer any disability during the course of employment.
SCCL is equally bound by those enactments. But issues in these Writ
Petitions need not be overshadowed by the objectives of those welfare
legislations and to give it a colour not warranted on the issues in these Writ
Petitions. As noticed above, the Act deals with various aspects of
employment in a Mine and also assessment of fitness of an Employee to
work in a Mine or in a particular category of Mine or particular post in a
Mine. As noticed above, the Act and the Rules do not prohibit provision of
alternate job when an Employee is declared medically unfit to hold the
present job.
2nd issue:
23. On 20.12.2016 SCCL introduced scheme called as Voluntary
Retirement Scheme on Health Reasons giving a new dimension to the
scheme of dependant employment. By this scheme, if an Employee, who has
more than two years left over service, opts to retire on health grounds and on
assessment, if he was allowed to retire, a male dependant would be provided
employment. The legality and validity of the scheme was assailed in W.P.
(PIL) No.19 of 2017. By Judgment, dated 16.3.2017, the Division Bench
declared the impugned scheme as violative of Articles 14 & 16 of the
Constitution of India.

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 453
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
24. After the Judgment of the Division Bench, scheme of Compassionate
Appointment was reviewed and amendments to the scheme were notified
vide Circular No.CRP/PER/IR/C/081/305, dated 9.3.2018. On the same day,
Office Memorandum was issued. According to the Circular and Office
Memorandum, only if an Employee is declared as totally incapacitated to
work/unemployable, dependant employment would be offered. In case
Employee is declared as unfit to the present job but fit for alternate job,
alternate job would be provided.
25. Singularly, the emphasis of Employees is, the moment an Employee
is declared medically unfit to continue in the post held by him, he should be
retired and there is no question of giving alternative employment and as a
corollary his dependant should be provided employment. In other words,
Employees seek that though their health condition is not at a stage of ‘un-
employability’, thereby becoming burden on the family and though
Employer found them fit to do another job with protection of emoluments
hitherto drawn, they would go home and do not intend to work and that their
dependants be offered employment.
26. An Employer can expect better output from his Employees only if he
looks after their welfare. One stand out feature of public employment is
safety of tenure and assured post retirement benefits. Normally, once a
person secures public employment, he becomes the sole breadwinner of the
family and all other Family Members depend on his earnings as a Public
servant. In an unforeseen event when breadwinner meets premature death or
becomes seriously ill, the financial arrangement of the family goes haywire.
As a responsible, concerned Employer, it is his bounden duty to come to the
rescue of such Employee and/or his Family Members. Out of the concern/
compassion to family of the Employee, the concept of dependent
employment has emerged. The Employer formulates scheme of dependent
employment. The primary objective of such scheme is to elevate the
suffering of family due to sudden death of Employee or due to sickness,
becoming unemployable. Under the scheme of dependent employment,
Employer extends helping hand to the family of deceased Employee/
Employee suffering with serious, life threatening ailment, by providing
employment to one of the Family Members.
27. Though, in a democratic polity there is no room for hereditary
succession to any office, including public employment, in a sense, the
scheme of dependent employment carves out an exception and provides
employment to a Family Member, loosely called, succession. It is based on
nomination and no Selection process is involved. It is an exception to normal
method of recruitment to public employment.
28. First appointment to public post whether it is in State/Central service
or service in the Public sector undertakings has to be in accordance with the
Rules/Regulations governing the services. Such recruitment should be open

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to all eligible candidates and selections are to be made in transparent manner

and should stand the test of Articles 14 & 16 of the Constitution of India.
Certain exemptions are carved out to this Constitutional norm to make
recruitment and one such exception is “appointment on Compassionate
grounds/dependent employment”. In Public employment such scheme is
prevalent. This scheme of Compassionate Appointment is in recognition of
the Employer’s commitment to look after the members of the family of the
Employee who had premature death/forced to retire from service on being
declared as medically unfit, much before he/she would attain the age of
Superannuation leaving the Family Members in the lurch. The scheme is
intended to give a kind of protection to the members of the family due to
untimely/premature loss of breadwinner in the family or premature
retirement of bread winner on health grounds upsetting the family financial
calculations. As the scheme of dependent employment is an exception to
normal method of recruitment to Public employment, it receives strict
construction. No right is vested in a person to seek dependent employment as
a matter of course. A person can seek benefit of the scheme only if
conditions of the scheme are fulfilled.
29. In the long line of precedent decisions, issue of dependant
employment was considered by the Hon’ble Supreme Court. It is necessary
and expedient to consider few of the precedent decisions.
29.1. In Umesh Kumar Nagpal v. State of Haryana, 1994 (2) LLN 420
(SC) : 1994 (4) SCC 138, Supreme Court was highly critical of High Courts
giving directions to grant appointment on Compassionate grounds without
regard to the nature of appointment, the policy of the Employer and the
necessity to grant such appointment. Supreme Court held,—
“2. ... The whole object of granting Compassionate employment is thus to enable
the family to tide over the sudden crisis. The object is not to give a member of
such family a post much less a post for post held by the deceased. What is
further, mere death of an Employee in harness does not entitle his family to such
source of livelihood. The Government or the Public Authority concerned has to
examine the financial condition of the family of the deceased, and it is only if it is
satisfied, that but for the provision of employment, the family will not be able to
meet the crisis that a job is to be offered to the eligible member of the family. The
posts in Classes III & IV are the lowest posts in non-manual and manual
categories and hence they alone can be offered on Compassionate grounds, the
object being to relieve the family, of the financial destitution and to help it get
over the emergency. The provision of employment in such lowest posts by
making an exception to the rule is justifiable and valid since it is not
discriminatory. The favourable treatment given to such dependant of the
deceased Employee in such posts has a rational nexus with the object sought to
be achieved, viz., relief against destitution. No other posts are expected or
required to be given by the Public authorities for the purpose. It must be
remembered in this connection that as against the destitute family of the
deceased there are millions of other families which are equally, if not more

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 455
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
destitute. The exception to the rule made in favour of the family of the deceased
Employee is in consideration of the services rendered by him and the legitimate
expectations, and the change in the status and affairs, of the family engendered
by the erstwhile employment which are suddenly upturned.”
29.2. In Director of Education (Secondary) v. Pushpendra Kumar, 1998
(3) LLN 47 (SC) : 1998 (5) SCC 192, Supreme Court held:
“8. The object underlying a provision for grant of Compassionate employment is
to enable the family of the deceased Employee to tide over the sudden crisis
resulting due to death of the bread-earner which has left the family in penury and
without any means of livelihood. Out of pure humanitarian consideration and
having regard to the fact that unless some source of livelihood is provided, the
family would not be able to make both ends meet, a provision is made for giving
gainful appointment to one of the dependants of the deceased who may be
eligible for such appointment. Such a provision makes a departure from the
general provisions providing for appointment on the post by following a
particular procedure. Since such a provision enables appointment being made
without following the said procedure, it is in the nature of an exception to the
general provisions. An exception cannot subsume the main provision to which it
is an exception and thereby nullify the main provision by taking away completely
the right conferred by the main provision. Care has, therefore, to be taken that a
provision for grant of Compassionate employment, which is in the nature of an
exception to the general provisions, does not unduly interfere with the right of
other persons who are eligible for appointment to seek employment against the
post which would have been available to them, but for the provision enabling
appointment being made on Compassionate grounds of the dependant of a
deceased Employee. In Umesh Kumar Nagpal v. State of Haryana, 1994 (4) SCC
138, this Court has taken note of the object underlying the rules providing for
appointment on Compassionate grounds and has held that the Government or the
Public Authority concerned has to examine the financial condition of the family
of the deceased and it is only if it is satisfied, that but for the provision of
employment, the family will not be able to meet the crisis that a job is to be
offered to the eligible member of the family. In that case the Court was
considering the question whether appointment on Compassionate grounds could
be made against posts higher than posts in Classes III & IV. It was held that such
appointment could only be made against the lowest posts in non-manual
categories.”
29.3. In Bhawani Prasad Sonkar v. Union of India, 2011 (3) LLN 37
(SC) : 2011 (4) SCC 209, Supreme Court held:
“15. Now, it is well settled that Compassionate employment is given solely on
humanitarian grounds with the sole object to provide immediate relief to the
Employee’s family to tide over the sudden financial crisis and cannot be claimed
as a matter of right. Appointment based solely on descent is inimical to our
Constitutional scheme, and ordinarily public employment must be strictly on the
basis of open invitation of applications and comparative merit, in consonance
with Articles 14 & 16 of the Constitution of India. No other mode of
appointment is permissible. Nevertheless, the concept of Compassionate
Appointment has been recognised as an exception to the general rule, carved out

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in the interest of justice, in certain exigencies, by way of a policy of an

Employer, which partakes the character of the service rules. That being so, it
needs little emphasis that the scheme or the policy, as the case may be, is binding
both on the Employer and the Employee. Being an exception, the scheme has to
be strictly construed and confined only to the purpose it seeks to achieve.
20. Thus, while considering a claim for employment on Compassionate ground,
the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of Rules or
Regulations issued by the Government or a Public Authority. The request is to
be considered strictly in accordance with the governing scheme, and no
discretion as such is left with any authority to make Compassionate
Appointment de hors the scheme.
(ii) An application for Compassionate employment must be preferred without
undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on Compassionate ground is to meet the sudden crisis
occurring in the family on account of the Death or Medical invalidation of the
breadwinner while in service. Therefore, Compassionate employment cannot
be granted as a matter of course by way of largesse irrespective of the
financial condition of the deceased/incapacitated Employee’s family at the time
of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants
of the deceased/incapacitated Employee, viz. parents, spouse, son or daughter
and not to all relatives, and such appointments should be only to the lowest
category that is Class III & IV posts.”
29.4. In CCE & Customs v. Prabhat Singh, 2012 (13) SCC 412,
Supreme Court held:
“15. Had the High Court or the Tribunals applied their mind to the aforesaid
precondition for eligibility for appointment on Compassionate grounds, none of
the directions issued by the High Court or the Tribunals would have been issued.
Such directions could have been issued only when the party approaching the
Tribunal or the High Court had established a prima facie case, by demonstrating
fulfillment of the terms and conditions stipulated in the rules/regulations/policy
instructions/office memoranda, relevant for such consideration. Had the
aforesaid simple exercise been carried out, it would not have been necessary to
examine the matter again and again.
16. In the instant case, on a simple issue of Compassionate Appointment, there
have been repeated rounds of litigation, the first time before CAT, Allahabad
Bench, then before CAT, Lucknow Bench, and thereafter, before the High Court.
From the High Court the matter has now been carried to this Court. If only the
prerequisite eligibility of Prabhat Singh for appointment on Compassionate
grounds had been examined, it would not have been necessary to examine the
matter again, and yet again.”

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 457
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
29.5. Broad principles that emerge from the decisions of the Hon’ble
Supreme Court, to the extent of issues raised in these writ petitions, are as
under:
1. As the dependant employment is an exception to the normal
recruitment procedure to public posts, it can not subsume the main
provision.
2. The object of granting dependant employment is to relieve the family
of financial constraints on account of untimely demise of bread
winner/bread winner developed serious health problem making him
unemployable and losing his job and to enable the family to tide over the
sudden crisis.
3. Employment under the scheme can be provided only if the Employer is
satisfied that unless the employment is provided the family will not be
able to meet the crisis and only after assessment of financial condition.
30. It is also necessary to note that once an Employee becomes seriously
ill, he may not be employable further and he would require regular Medical
attention. In such an eventuality, the family requires huge finances to attend
to his/her treatment and to look after him/her, which may prolong. From the
stage of bread-winner he/she may end up as a burden on the family. Thus,
dependent employment deals with two contingencies, death and sickness and
is born out of the concern of the Employer to look after the welfare of the
Employee and his/her family.
31. As noted above, dependent employment is an exception to normal
method of recruitment and shall receive narrow/strict interpretation to the
clauses of the scheme. It can be extended in the event of death of
breadwinner or breadwinner suffering from serious ailment making the
Employee unemployable. Only in these two contingencies, the family may
need the support of the Employer. Even in such a case, provision of
employment is not automatic. The family has to satisfy the employer that
there is no other breadwinner in the family and that family has no financial
means to deal with the contingency.
32. At this stage, it is apt to note the opinion expressed by the Hon’ble
Supreme Court in V. Siva Murthy (supra) on scheme of dependent
employment when Employee retired on Medical invalidation grounds. It
reads as under:
“26. As an incidental reason for holding that Compassionate Appointments are
not permissible in cases of Medical invalidation, the High Court has observed
that death stands on a “higher footing” when compared to sickness. The
inference is Compassionate Appointment in case of Medical invalidation cannot
be equated with death-in-harness cases, as Medical invalidation is not of the
same degree of importance or gravity as that of death; and that as Medical
invalidation is not as serious as death-in-harness, exception can be made only in

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cases of Employees dying-in-harness. But what is lost sight of is the fact that
when an Employee is totally incapacitated (as for example when he is
permanently bedridden due to paralysis or becoming a paraplegic due to an
accident or becoming blind) and the services of such an Employee is terminated
on the ground of Medical invalidation, it is not a case of mere sickness. In such
cases, the consequences for his family may be much more serious than the
consequences of an Employee dying-in-harness.
27. [Ed.: Para 27 corrected vide Official Corrigendum No.F.3/Ed.B.J./70/2008,
dated 4.9.2008.]. When an Employee dies in harness, his family is thrown into
penury and sudden distress on account of stoppage of income. But where a
person is permanently incapacitated due to serious illness or accident, and his
services are consequently terminated, the family is thrown into greater financial
hardship, because not only the income stops, but at the same time there is
considerable additional expenditure by way of medical treatment as also the need
for an attendant to constantly look after him. Therefore, the consequences in case
of an Employee being medically invalidated on account of a serious illness/
accident, will be no less, in fact far more than the consequences of death-in-
harness. Though generally death stands on a higher footing than sickness, it
cannot be gainsaid that the misery and hardship can be more in cases of medical
invalidation involving total blindness, paraplegia, serious incapacitating illness,
etc.
………
30. There are of course safeguards to be taken to ensure the scheme is not
misused. One is to ensure that mere medical unfitness to continue in a post is not
treated as Medical invalidation for the purposes of Compassionate Appointment.
A Government servant should totally cease to be employable and become a
burden on his family, to warrant Compassionate Appointment to a member of his
family. Another is barring Compassionate Appointments to dependants of an
Employee who seeks voluntary retirement on medical grounds on the verge of
Superannuation. This Court observed in Ram Kesh Yadav, 2007 (9) SCC 531 :
2007 (2) SCC (L & S) 559, as follows: (SCC p. 535, para 9)
“9. But for such a condition, there will be a tendency on the part of Employees
nearing the age of Superannuation to take advantage of the scheme and seek
Voluntary Retirement at the fag end of their service on Medical grounds and
thereby virtually creating employment by ‘succession’. It is not permissible for
the Court to relax the said condition relating to age of the Employee. Whenever
a cut-off date or age is prescribed, it is bound to cause hardship in marginal
cases, but that is no ground to hold the provision as directory and not
mandatory.”
We find that in this case stringent safeguards were in fact built into the scheme
on both counts by GMs., dated 4.7.1985 & 9.6.1998.”
33. In W.P.(PIL) No.19 of 2017, the Division Bench while striking down
the scheme, dated 20.12.2016, emphasized that un-employability is the
primary requirement to retire an Employee and to provide dependent
employment.

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 459
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
34. The Act, the Rules and the NCWA-VI, all envisage to provide
dependent employment only if the Employee’s health status makes him
unemployable and not otherwise. In all these cases Petitioners have not
reached the stage of un-employability and are fit to do alternate job.
Therefore, when Petitioners are declared fit to do alternate job, they cannot
insist that they should be retired from service and their dependents be
provided employment.
3rd & 4th issues are considered together:
35. Employees of SCCL had serious grievance on several issues
concerning their employment. As Management was not attending to their
grievances, they have taken an extreme step to go on strike. The Singareni
Collieries Workers Union, which claimed to be the majority union
representing the workforce of SCCL, issued strike Notice, dated 29.12.1999
raising 44 demands and proposed to go on strike from 12.1.2000, if by then
demands were not met. The Regional Labour Commissioner (Central)
Hyderabad initiated conciliation process. After several rounds of
deliberations, finally, in the presence of the Regional Labour Commissioner
(Central) Hyderabad, Memorandum of Settlement was arrived under the
Industrial Disputes Act 1947 and on 21.2.2000 terms of Settlement were
recorded. Item No.4 of the Settlement concerns the issue in these cases. It
reads as under:
“Item No.4: Providing alternative employment to the Workmen declared unfit to
their original job due to reasons other than mine accidents (Demand No.4).
The Union demanded that the Workmen declared unfit for their jobs due to
reasons 90 other than mine accidents should be provided alternative jobs on
surface.
The Management has stated that in the circumstances prevailing in SCCL with
surplus manpower, it is the proclaimed policy of the company that the postings,
transfers and promotions should be against the identified vacancies. However, in
view of the persistent demand of the recognized union, it is hereby agreed as a
last time exception that the cases of the workmen declared unfit for their original
jobs due to reasons other than mine accidents and seeking alternative
employment as on date would be considered by the ‘Broad Based Medical
Committee’ headed by Director (P.A. & W) to ascertain their suitability for their
own job or alternative jobs in underground or as an exception in surface
departments/open cast projects subject to their fitness for such jobs. The cases of
those medical unfit workmen whose terminal benefits have been settled or opted
for dependant employment or opted for payment of Monthly Monetary
Compensation are not covered under the purview of this item.”
36. In substance the SCCL Management agreed to provide alternative
employment if an Employee is declared as unfit to the present job, not
attributable to mine accident. Management justifies its decision to provide
alternative employment by relying on above clause of the Settlement.

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460 LABOUR LAW NOTES 2021 (1) LLN

37. To overcome this formidable defense of the SCCL in support of its

decision to provide alternative employment, it was vehemently contended
that the National Coal Wage Agreements (NCWAs) are binding on the
Management of SCCL and to the extent of inconsistency, the Settlement,
dated 21.2.2000 is not valid and cannot be enforced.
38. If we look into the history of mining of coal, as the world progressed
towards industrialization, there was greater demand for coal. Overzealous
mine owners exploited the workers to gain more profits. There were poor
working conditions and workers were paid very low wages. Many workers
developed chronic health problems which were fatal and owners did not take
care of sick workers and/or their families. The Mines Act, 1952 was enacted
to address the problems faced by the workers. After nationalization of coal
mining, though working conditions were improved but still a lot was to be
done. In the year 1974 system of National Coal Wage Agreement was
instituted. It has twin objectives. Firstly, having regard to hazardous
conditions of employment to extract coal by coal companies and there are
several owners of Coal Mines, to ensure uniform working conditions, proper
remuneration, incentives, safety, and security; and secondly, to strengthen
the welfare and health of the workers in coal mines and empower them
financially. A Joint Bipartite Committee for the coal industry (JBPCCI) was
formed to look into wage structure, fitment, dearness allowance, service
conditions, which include work norms, fringe benefits etc. The committee
comprises of representatives of Managements of coal companies and
representatives of Workmen. The Chairman of Coal India Limited is the Ex-
Officio Chairman. Based on the deliberations, the first National Coal Wage
Agreement was made. Periodically the JBPCCIs are reconstituted and based
on the deliberations from time to time, several NCWAs were notified.
NCWA-X is the one in force. As SCCL is part of JBPCCI and is a signatory
to NCWAs, the terms of agreements are binding on the SCCL.
39. In NCWA-VI, Chapter IX deals with social security. On the issue, in
this batch of Writ Petitions, the relevant clauses are 9.3.0, 9.3.1 & 9.4.0. All
subsequent NCWAs adopted these clauses. They read as under:
“9.3.0. Provision of employment to dependants:
9.3.1. Employment would be provided to one dependant of workers who are
disabled permanently and also those who die while in service. The provision will
be implemented as follows:
………
9.4.0. Employment to one dependant of a worker who is permanently disabled in
his place:
(i) The disablement of the Worker concerned should arise from injury or
disease, be of a permanent nature resulting into loss of employment and it
should be so certified by the coal company concerned.

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 461
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
(ii) In case of disablement arising out of general physical debility so certified
by the Coal Company, the Employee concerned will be eligible for the benefit
under this clause, if he or she is upto the age of 58 years.
The term ‘general physical debility’ would mean deficiency of a Workman due
to any disease or other health reason leading to his or her disablement to
perform his or her duties regularly and/or efficiently.
(iii) The dependant for this purpose means the wife/husband as the case may
be, unmarried daughter, son and legally adopted son. If no such direct
dependant is available for employment, brother, widowed daughter/widowed
daughter in law or son in law residing with the Employee and almost wholly
dependant on the earning of the Employee may be considered.
In so far as female dependants are concerned, their employment would be
governed by the provisions of Clause 9.5.0.
(iv) The dependants to be considered for employment should be physically fit
and suitable for employment and aged not more than 35 years provided that the
age limit in case of employment of female spouse would be 45 years as given
in Clause 9.5.0. In so far as male spouse is concerned, there would be no age
limit regarding provision of employment.”
40. By relying on Clause 9.4.0(ii) it was contended that once an
Employee suffers physical debility it would be permanent and he must be
retired from service and in his place dependent should be provided
employment. Heavy reliance is placed on term, ‘general physical debility’ to
drive home the point. It was vehemently contended that Clause 9.4.0 of
NCWA VI prevails over the settlement under Section 12(3) of Industrial
Disputes Act. This contention is to overcome item-4 of the Memorandum of
Settlement, dated 21.2.2000. As noticed above, Item No.4 of Settlement
enables the SCCL to offer alternative employment if an Employee is
declared medically unfit to work in the job held by him.
41. To appreciate this contention, it is necessary to consider two aspects.
Firstly, whether there is a conflict between NCWA-VI and Settlement, dated
21.2.2000 arrived under Section 12(3) of Industrial Disputes Act; and
secondly, assuming there is a conflict, which would prevail.
42. Clause 9.3.1 of NCWA-VI deals with provision of dependent
employment in case of death while in service or permanent disability. Clause
9.3.2 therein deals with contingency of death of Employee and Clause 9.3.4
therein deals with consequence of permanent disability of Employee.
43. Clauses in NCWA have to be seen in the light of Mines Act and
Mines Rules and the reasons for envisaging NCWAs per se. As noted earlier,
primary concern is health and welfare of Employees working in coal mines
and in an unfortunate event, to take care of welfare of the Family Members
of the Employee. On a cumulative reading of the heading of Clause 9.4.0.,
Paragraph (i) & (ii) of Clause 9.4.0 of NCWA-VI, it is clear, these clauses

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462 LABOUR LAW NOTES 2021 (1) LLN

deal with situation when the coal company certifies that a worker suffered
permanent disability due to injury or disease or for other health reasons
resulting in loss of employment and mandates that dependent should be
provided employment. On a plain reading, this clause does not deal with
contingency where Employee is found unfit to do the job held by him but is
declared fit to do another job. It envisages dependent employment only if
Employee is certified to be unfit to continue in employment. Further, the Act
and the Rules as noticed in the first issue, do envisage provision of
alternative employment after the Employee is declared medically unfit to
hold the present job but was not declared unemployable.
44. On the contrary, Clause 4 of Settlement, dated 21.2.2000 deals with a
situation where Employee is found unfit to do the job he was holding at the
time of Medical examination but was found fit to do another job. It mandates
SCCL to provide alternate job. Thus, these two provisions deal with two
different contingencies, with primary objective of welfare of the Employee
and his family. Clause 9.4.0 of NCWA-VI deals with situation when health
condition of Employee becomes unemployable whereas Clause 4 of
Memorandum of Settlement, dated 21.2.2000 deals with situation when
Employee is found fit for alternate job. I do not see any conflict between
Clause 9.4.0 of NCWA-VI and Item No.4 of Memorandum of Settlement,
dated 21.2.2000.
45. Even assuming that Clause 9.4.0 of NCWA-VI requires Employer to
retire the Employee once he is declared unfit to do the job held by him at the
time of Medical examination and to provide dependant employment, Item
No.4 of Settlement, dated 21.2.2000 would prevail. Settlement arrived under
Section 12(3) read with Section 18 of the Industrial Disputes Act, stands on
a higher pedestal compared to any other Settlement.
46. At this stage, it is necessary to note the Principle of Law on scope and
binding nature of Settlement arrived under Section 12(3) read with Section
18 of the Industrial Disputes Act on the Management and on all Workmen.
47.1. In Barauni Refinery Pragatisheel Shramik Parishad v. Indian Oil
Corporation Ltd., 1991 (1) SCC 4, Supreme Court dealt with binding nature
of Settlement under the Industrial Disputes Act. Supreme Court held:
“8. Since the High Court has answered the first point in the affirmative i.e. in
favour of the Workmen, we do not consider it necessary to deal with that aspect of
the matter and would confine ourselves to the second aspect which concerns the
binding character of the Settlement. Section 2(p) of the Industrial Disputes Act,
1947 defines a Settlement as a Settlement arrived at in the course of Conciliation
proceedings and includes a Written Agreement between the Employer and
Workmen arrived at otherwise than in the course of Conciliation proceeding where
such Agreement has been signed by the parties thereto in such manner as may be
prescribed and a copy thereof has been sent to the Officer Authorised in this behalf
by the appropriate Government and the Conciliation Officer. Section 4 provides for

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 463
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
the appointment of Conciliation Officers by the appropriate Government. Section
12(1) says that where any Industrial Dispute exists or is apprehended the
Conciliation Officer may, or where the dispute relates to a public utility service and
a notice under Section 22 has been given, shall, hold Conciliation proceedings in
the prescribed manner. Sub-section (2) of Section 12 casts a duty on the
Conciliation Officer to investigate the dispute and all matters connected therewith
with a view to inducing the parties to arrive at a fair and amicable settlement of the
dispute. If such a settlement is arrived at in the course of conciliation proceedings,
sub-section (3) requires the Conciliation Officer to send a report thereof to the
appropriate Government together with the Memorandum of Settlement signed by
the parties to the dispute. Section 18(1) says that a Settlement arrived at by
Agreement between the Employer and the Workmen otherwise than in the course
of the Conciliation proceedings shall be binding on the parties to the Agreement.
Sub-section (3) of Section 18 next provides as under:
“18.(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 award of a Labour Court, Tribunal
or National Tribunal which has become enforceable shall be binding on—
(a) all parties to the Industrial Dispute;
(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 assigns 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, to which the dispute relates on the date of
the dispute and all persons who subsequently become employed in that
establishment or part.”
It may be seen on a plain reading of sub-sections (1) & (3) of Section 18 that
Settlements are divided into two categories, namely, (i) those arrived at outside
the Conciliation proceedings and (ii) those arrived at in the course of
Conciliation proceedings. A Settlement which belongs to the first category has
limited application in that it merely binds the parties to the Agreement but the
Settlement belonging to the second category has extended application since it is
binding on all parties to the Industrial Dispute, to all others who were
summoned to appear in the Conciliation proceedings and to all persons
employed in the establishment or part of the establishment, as the case may be,
to which the dispute related on the date of the dispute and to all others who
joined the establishment thereafter. Therefore, a Settlement arrived at in the
course of Conciliation proceedings with a recognised majority union will be
binding on all workmen of the establishment, even those who belong to the
minority union which had objected to the same. To that extent it departs from the
ordinary law of contract. The object obviously is to uphold the sanctity of
settlements reached with the active assistance of the Conciliation Officer and to
discourage an individual Employee or a minority union from scuttling the
settlement. There is an underlying assumption that a Settlement reached with the

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464 LABOUR LAW NOTES 2021 (1) LLN

help of the Conciliation Officer must be fair and reasonable and can, therefore,
safely be made binding not only on the Workmen belonging to the union signing
the Settlement but also on others. That is why a Settlement arrived at in the
course of Conciliation proceedings is put on par with an award made by an
Adjudicatory authority. The High Court was, therefore, right in coming to the
conclusion that the Settlement dated August 4, 1983 was binding on all the
Workmen of the Barauni Refinery including the Members of Petroleum and
Chemical Mazdoor Union.” (emphasis supplied)
47.2. This view is reiterated in Transmission Corporation v. P.
Ramachandra Rao, 2006 (2) LLN 826 (SC) : 2006 (9) SCC 623, after
referring to precedent decisions on binding nature of Settlement arrived
under the Industrial Disputes Act, Supreme Court observed as under:
“17. As the Settlement entered into in the course of Conciliation proceedings
assumes crucial importance in the present case, it is necessary for us to
recapitulate the fairly well-settled legal position and principles concerning the
binding effect of the Settlement and the grounds on which the Settlement is
vulnerable to attack in an Industrial Adjudication. Analysing the relative scope
of various clauses of Section 18, this Court in Barauni Refinery Pragatisheel
Shramik Parishad v. Indian Oil Corpn. Ltd., 1991 (1) SCC 4 : 1991 SCC (L & S)
1, succinctly summarised the position thus: (SCC p.5)
………
18. As observed by this Court in Tata Engg. case, 1981 (4) SCC 627 : 1982 SCC
(L & S) 1, a Settlement cannot be weighed in any golden scales and the question
whether it is just and fair has to be answered on the basis of principles different
from those which comes into play when an Industrial Dispute is under
adjudication. If the Settlement had been arrived at by a vast majority of workers
concerned with their eyes open and was also accepted by them in its totality, it
must be presumed to be just and fair and not liable to be ignored while deciding
the reference made under the Act merely because a small number of workers
were not parties to it or refused to accept it or because the Tribunal was of the
opinion that the workers deserved marginally higher emoluments than they
themselves thought they did. The decision in Herbertsons Ltd. case, 1976 (4)
SCC 736 : 1977 SCC (L & S) 48, was followed.
19. As noted above there was no challenge to the Settlement which was the
foundation for the Board’s decision. A copy of the memorandum of Settlement
under Section 12(3) of the Act before the Joint Commissioner of Labour and the
State Conciliation Officer, Government of Andhra Pradesh, Hyderabad was
placed on record. On the basis of the Settlement, the Board’s decision was taken.
Para 2 of the proceedings is very significant and read as follows:
“A Wage Negotiation Committee was therefore, constituted by the Board in the
BP sixth read above. The Committee held detailed discussions with the
representatives of the unions and finally reached a negotiated Settlement with
the recognised union under the Code of discipline on 29.1.1991 before the Joint
Commissioner of Labour and the State Conciliation Officer under Section
12(3) of the ID Act.”
47.3. In ITC Ltd. Workers’ Welfare Assn. v. ITC Ltd., 2002 (3) SCC
411, Supreme Court held that settlement arrived under Section 12(3) must be

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 465
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
given due weight and also observed that even if the Settlement under Section
12(3) of the Industrial Disputes Act is challenged the scope of Judicial
Review to test its validity is very limited. Supreme Court held:
“18. The next principle to be borne in mind is that in a case where the validity of the
Settlement is assailed, the limited scope of Enquiry would be, whether the settlement
arrived at in accordance with sub-sections (1) to (3) of Section 12, is on the whole
just and fair and reached bona fide. An unjust, unfair or mala fide Settlement
militates against the spirit and basic postulate of the Agreement reached as a result of
conciliation and, therefore, such Settlement will not be given effect to while deciding
an Industrial Dispute. Of course, the issue has to be examined keeping in view the
presumption that is attached to the Settlement under Section 12(3).
………
23. What follows from a conspectus of these decisions is that a Settlement which
is a product of collective bargaining is entitled to due weight and consideration,
more so when a Settlement is arrived at in the course of the Conciliation
proceedings. The Settlement can only be ignored in exceptional circumstances
viz. if it is demonstrably unjust, unfair or the result of mala fides such as corrupt
motives on the part of those who were instrumental in effecting the Settlement.
That apart, the Settlement has to be judged as a whole, taking an overall view.
The various terms and clauses of Settlement cannot be examined in piecemeal
and in vacuum.” (emphasis supplied)
48. At this stage, it is appropriate to note that the NCWA is equally
binding on the Industry and its Employees. Thus, there are two binding
Agreements/Settlements. The NCWA is a platform created at all India level
and governs owners of all Coal Mines and their Employees. It is a
comprehensive agreement, generally governing all aspects of employment in
a coal mine. On the contrary, Memorandum of Settlement, dated 21.2.2000
arises out of Conciliation proceedings to resolve the Industrial Dispute
between the Workers and SCCL. It is not in dispute that NCWA is binding
on SCCL and is committed to enforce the terms of the Agreement. At the
same time, there is an obligation on SCCL to ensure industrial peace and for
this purpose, SCCL entered into Settlement with its workers under the
Industrial Disputes Act and therefore, this Settlement is also binding on
SCCL. NCWA can be termed as general terms of agreement; whereas
Memorandum of Settlement, dated 21.2.2000 is a special Agreement/
Settlement as distinct from NCWA, dealing with specific aspects of
employment in SCCL. This is also binding on Employees and SCCL. Thus,
even if there is a conflict between NCWA clauses and Memorandum of
Settlement, dated 21.2.2000, on the issue of providing alternative
employment, the Memorandum of Settlement, dated 21.2.2000 shall prevail.
Further, with eyes wide open, Employees having invited a Settlement under
Section 12(3) of Industrial Disputes Act, which envisages provision of
alternate employment in the event an Employee is declared unfit to continue
in the job held by him, they cannot turn around and contend that it is not
binding on them.

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466 LABOUR LAW NOTES 2021 (1) LLN

49. Thus, if an Employee is declared unfit to do job held by him at the

time of Medical examination but declared as fit to do any other job, SCCL is
competent to offer alternate job. An Employee can be retired and dependant
employment can be provided only if he is declared as unemployable.
5th Issue:
50. The contention is two fold. Remedy of Appeal under Rule 29-J of the
Rules is denied and Appeal to higher authority within SCCL is not provided.
Incidentally, it is also contended that opinion of Corporate Medical Board
was not furnished to Petitioners depriving the opportunity to effectively
make an Appeal. This contention looks attractive at the first blush but on a
closer scrutiny on the issues in the Writ Petitions and the relevant provisions
and the averments in the Writ Petitions, the same has no merit.
(i) Remedy of Appeal under the Mines Rules:
51. Rule 29-B (b) contemplates Periodical Medical examination at a fixed
interval of at least five years. Rule 29-J creates a forum to challenge the
result of Medical examination as per Rule 29-B (b). This Rule also
prescribes procedure to be followed, if an Appeal is preferred. Rule 29-K
deals with constitution and composition of Appellate Medical Board.
52. A conjoint reading of Rules 29-B(b) & 29-J would make it clear that
if an Employee is aggrieved by assessment of fitness made by the Medical
Authority of the Employer as part of periodical Medical assessment, he can
prefer Appeal. Thus, remedy of Appeal is available only when periodical
assessment of fitness is made as required by Rule 29-B(b). As asserted by
learned Special Government Pleader, the decisions impugned herein were
not as a result of periodical assessment of fitness under Rule 29-B (b), but on
a request made by individual Employees even before Periodical Medical
assessment was due. This assertion is not controverted. Thus, strictly going
by the scheme of the Act and Chapter IV A of the Rules, the action taken by
SCCL to conduct Medical examination of Employees, who made an
application even before Periodical Medical assessment was due, is not
envisaged therein. It is a decision taken by the SCCL on a favorable
consideration of the request by Employees to subject them for Medical
examination de-horse the scheme of Chapter IV-A of the Rules, as Employer
but not only as an Owner of a mine. Present exercise resulting in this
litigation is not envisaged by Rules 29-B(b) & 29-J of the rules.
53. Even, assuming that remedy of Appeal is available, on a close look at
the scheme of the Rules, it is apparent that consent of Employer to avail the
remedy of Appeal is not envisaged. It is for the concerned Employee to go in
Appeal, if he is not satisfied with the assessment of Medical Authority on his
fitness. Nothing prevented Employees from availing such remedy. Without
availing the remedy of appeal, if any, on their own volition Petitioners have

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 467
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
opted to institute these writ petitions under Article 226 of the Constitution of
India raising several pleas on various aspects of the assessment of their
fitness. Further not furnishing the report of assessment by Corporate Medical
Board is not a ground against not availing the remedy of appeal, if any, as
this can also be urged in support of the appeal.
(ii) Remedy of Appeal within SCCL:
54. It was also contended that earlier SCCL provided Appellate Medical
Board vide Office Memorandum, dated 29.6.2014 but later these orders are
withdrawn. Before appreciating this contention, it is necessary to note that
Medical examination exercise pursuant to which the impugned decisions are
taken, is in addition to the Periodical Medical examination envisaged in Rule
29-B(b) and even before Periodical Medical examination was due. Office
Memorandum, dated 29.6.2014 was superseded by Circular, dated 7.4.2015.
By this Circular Appellate Medical Board is dispensed with and a broad based
Corporate Medical Board is constituted. In the earlier composition of
Corporate Medical Board and Appellate Medical Board, there was only one
Medical Officer. In the reconstituted Corporate Medical Board, there are two
or three Medical professionals. After the Division Bench Judgment in W.P.
(PIL) No.19 of 2017, revised order was issued in Office Memorandum, dated
9.3.2018. The Corporate Medical Board is reconstituted. All non-medical
officials are excluded and now the board comprises only Medical
professionals. The Chief Medical Officer of SCCL is Chairman and 2 or 3
specialists are nominated by the Government. Thus, it is ensured that objective
and professional assessment of fitness can be made as all the members of the
Board are professionals and except the Chairman other members are outsiders.
Further, it is seen from Office Memorandum, dated 29.6.2014 that even when
Appellate Medical Board was functioning, the remedy of Appeal was confined
to cases of Employees who are declared as fit for same job. In none of these
cases Employees are declared as fit for the same job.
55. On 29.5.2000 Office Memorandum was issued constituting Corporate
Medical Board. On the same day detailed Circular instructions were notified
bearing No.P40/5911/IR/1206, which contain procedure to examine and also
specified relevant forms. A reading of annexure appended to the Circular
would show that all the details of Employee including past Medical record,
result of earlier Medical examination, etc. have to be furnished when
Employee applies for Medical examination. More comprehensive Circular
No.CRP/PER/IRPM/C/081/1218 was issued on 7.4.2015. The proformas
enclosed to this Circular also require furnishing past Medical history and
previous assessment by Medical authority, if any made. The Board has the
previous Medical history and with experts on Board, it can make assessment
of fitness of the Employee presented before the Board. The Medical Board is
also required to assess the fitness of the Employee to hold the present post
and his suitability to hold alternative post. Further, before issue reaches to

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468 LABOUR LAW NOTES 2021 (1) LLN

the Corporate Medical Board, there would be scrutiny of the claim and
health condition of the Employee at various levels. It is thus seen that a
robust procedure was put in place to assess the fitness of the Employee who
applies for Medical examination. No mala fides are attributed to Medical
professionals forming part of Corporate Medical Board. In the absence of
attributing clear mala fides, it cannot be assumed that the Corporate Medical
Board made wrong assessment of health of Petitioners. Having regard to the
scheme of the Rules, claim of Petitioners and detailed mechanism evolved
by SCCL, it cannot be said that not providing further appeal within the
SCCL has greatly prejudiced Petitioners.
56. Further, their entitlement for Periodical Medical examination under
Rule 29-B(b) and remedy of Appeal under Rule 29-J of the Rules is
preserved. I, therefore, see no merit on the submissions of learned Counsel
for Petitioners. Further, extensive submissions were made touching upon
various aspects of the core issue, i.e., findings of Corporate Medical Board
and the consequential decisions of the SCCL. All those submissions are
comprehensively considered in this order.
6th Issue:
57. It is further contended that without the consent of Employee, he
should not be given another job. It is to be noted at this stage, that none of
the Circulars/Office Memorandums which provide for alternative
employment are under challenge. Further, Item No.4 of Memorandum of
Settlement, dated 21.2.2000 requires SCCL to provide alternative
employment. This is agreed by the majority union and is binding on all
Employees. In terms thereof no prior consent of Employee is required to
offer alternate job.
58. Even otherwise, it is the prerogative of the Employer to use the
services of Employee in whatever manner he requires in the larger interests
of the Company. Employee cannot dictate terms to the Employer as to how
his services can be utilized. Two basic aspects of employment in a Public
Sector Company are: (1) Employee’s conditions of service should not be
affected to his disadvantage; (2) his pay and allowances should not be
lowered at any stage of service except by way of punishment, as a result of
Disciplinary action. In the cases on hand, Employees have applied for
Medical examination. On such examination they were found unfit to do
present job but found fit to do other job. Item No.4 of Memorandum of
Settlement, dated 21.2.2000 envisages provision of alternative job.
Therefore, it is not the case of unilateral alteration of status of Employee. It
is in compliance with the terms of the Memorandum of Settlement. Once an
Employee is declared unfit to do present job, in normal circumstances, he is
liable for termination. Instead of terminating him from service, he is
provided alternate job with protection of emoluments previously drawn.
SCCL has provided alternative job, instead of termination and is protecting
the pay and other allowances hitherto drawn by him. Thus, it cannot be said

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January 2021 Marikukkala Ramulti v. Chairman & Managing Director, 469
Singareni Collieries Company Ltd. (Telan.) (P. Naveen Rao, J.)
that his conditions of service are affected to his disadvantage. Thus, two
primary conditions of employment are not affected.
59. It is appropriate to note that there is no compulsion on Employee to
accept the alternative job and he can seek Voluntary Retirement/Premature
Retirement/Retirement from service.
7th Issue:
60. Lastly, it was contended that SCCL violated Rule 82(A) of the Rules.
As per this Rule, Petitioners are entitled to retire; entitled to get disability
allowance; and Compensation for occupational disease as they were declared
unfit to hold their substantive post.
61. As per First Proviso to Section 9(A)(5) where an Employee was
declared unfit to do job held by him at the time of reporting for Medical
examination but alternative job is not readily available to him, he should be
paid disability allowance. Rule 82-A(1) deals with such contingency and
specifies disability allowance payable. In these cases, SCCL has provided
alternative employment; many of the Petitioners have joined. Therefore,
what is envisaged by First Proviso to Section 9-A(5) & Rule 82-A(1) is not
attracted. Second Proviso to Section 9-A(5) and Rule 82-A(2) is also not
attracted, as these Employees have not opted to leave the employment. Thus,
Rule 82-A of the Rules is not violated by the SCCL. Petitioners desire to be
declared as unfit for employment and to grant all benefits, particularly
dependant employment.
62. In the above analysis of facts and the law, all the issues are held
against Petitioners. I hold as under:
(1) If an Employee is declared unfit to do the job held by him at the time
of Medical examination but declared as fit to do any other job, SCCL is
competent to offer alternate job.
(2) An Employee can be retired and dependant employment can be
provided only if in the Medical examination, he is declared as
unemployable.
(3) Unless the illness of the Employee makes him unemployable, such
Employee cannot claim dependant employment.
(4) The decisions of SCCL declaring the Petitioners as unfit to work in
the jobs held by them at the time of their Medical examination, declaring
fit to work in the alternative jobs and providing alternate jobs with
protection of pay and emoluments drawn in the posts held by them earlier
are legal and within the competence of the SCCL, and do not call for
interference.
63. The Writ Petitions fail and are accordingly dismissed. Pending
Miscellaneous Petitions shall stand closed.
  

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470 LABOUR LAW NOTES 2021 (1) LLN

2021 (1) LLN 470 (Utt.)

IN THE HIGH COURT OF UTTARAKHAND
Sudhanshu Dhulia, J.
W.P.(M/S) No.499 of 2019
28.2.2020
Central Bank of India .....Petitioner
Vs.
Regional Labour Commissioner (Central), Dehradun and others .....Respondent
PAYMENT OF GRATUITY ACT, 1972 (39 of 1972), Sections 4(1) &
4(6) — Payment of Gratuity — Grounds for forfeiture of Gratuity —
Respondent-3 working as Daftri with Petitioner-Bank — Served
Charge-sheet for misconduct and was terminated after Departmental
Enquiry — Gratuity of Respondent not paid by Petitioner-Bank —
Respondent-3 moved Application before Controlling Authority under
Act, which was allowed holding that grounds of Dismissal were not that
Respondent-3 caused financial loss to Petitioner-Bank — Hence,
Gratuity cannot be withheld — On Appeal by Bank, Order of
Controlling Authority upheld by Appellate Authority/Regional Labour
Commissioner — On challenge, held, admittedly, Bank failed to
quantify loss or damage caused to Bank — Even it be presumed that
Respondent caused loss to Bank, Bank can withhold only that much
amount of Gratuity equal to loss caused — On vague assertions without
quantifying loss, Gratuity of Respondent-3 could not be withheld or
forfeited under sub-section (6) of Section 4 of Act — No reason to
interfere with impugned Order — Writ Petition dismissed — Amount
deposited with Court along with Interest directed to be remitted to
Respondent within two weeks. (Paras 5 to 12)
Arvind Vashistha & Imran Ali Khan, Advocates for Petitioner.
Sandeep Sharma, Advocate for Respondent.
Finding — W.P. dismissed.
JUDGMENT
1. This is the Employer’s Writ Petition challenging the Order, dated
5.7.2012 passed by the Regional Labour Commissioner (Central) Dehradun
in P.G.A. Appeal D-36/05/2011 upholding the Order, dated 20.7.2011
passed by the Central Assistant Labour Commissioner, Dehradun, whereby a
sum of `2,39,948 (Rupees Two Lakh Thirty Nine Thousand Nine Hundred
Forty Eight Only) has been awarded to Respondent No.3 as gratuity with an
interest of 10% per annum.

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January 2021 Central Bank of India v. Regional Labour Commissioner (Central) 471
(Utt.) (Sudhanshu Dhulia, J.)
2. The Petitioner went in appeal before the Regional Labour
Commissioner (Central) Dehradun under Section 7 of the Payment of
Gratuity Act, 1972 where it was dismissed for non-prosecution. The matter
is now before this Court.
3. In short the facts of the case are that Respondent No.3 was working on
a Class IV post of “Daftari” in the Central Bank of India, at Meerut. While
he was in service in the Central Bank of India, a Departmental Inquiry was
constituted against Respondent No.3, inter alia, for the charges that he had
opened a society of bank Employees, and the charge was that the Bank
Employees are depositing money with that society thus causing financial
harm to the Bank, as otherwise they would have deposited this amount with
the Bank. This charge stood proved against Respondent No.3 and the
services of Respondent No.3 were terminated vide Order, dated 10.4.2002,
after the Respondent No.3 had already rendered 28 years of service in the
Bank.
4. This Court has not been apprised that whether the order of the
termination has been challenged by Respondent No.3 at any appropriate
forum.
5. Nevertheless, the gratuity of Respondent No.3 was withheld by the
Bank, which is the only subject matter of dispute here. Since the gratuity is a
statutory right of an Employee, which is liable to be given to him under sub-
section (1) of Section 4 of the Payment of Gratuity Act, 1972, Respondent
No.3 moved an application for payment of gratuity, inter alia, before the
Controlling Authority. The Controlling Authority after hearing both the
parties came to the conclusion that the grounds for dismissal were not that
Respondent No.3 had caused any financial harm to the banking institution
and therefore his gratuity cannot be withheld. The order though does not
seem to have elaborated on this aspect at any great detail.
6. Even though the charge against Respondent No.3 stands proved, yet
even if. it is assumed for the sake of argument that Respondent No.3 by his
conduct has caused financial harm to the Employer, yet the Employer must
withhold only that much of amount from his gratuity, which is equal to the
loss caused. This is given under sub-section (6) of Section 4 of the Payment
of Gratuity Act.
7. Sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972
reads as under:
“4. Payment of Gratuity.—
(1) ....
(2) .....
(3) .....

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472 LABOUR LAW NOTES 2021 (1) LLN

(4) .....
(5) ......
(6) Notwithstanding anything contained in sub-section (1),—
(a) the Gratuity of an Employee, whose services have been terminated for
any act, willful omission or negligence causing any damage or loss to, or
destruction of, property belonging to the Employer, shall be forfeited to the
extent of the damage or loss so caused.
(b) the Gratuity payable to an Employee may be wholly or partially forfeited-
(i) if the services of such Employee have been terminated for his riotous or
disorderly conduct or any other act of violence on his part, or
(ii) if the services of such Employees have been terminated for any act which
constitutes an offence involving moral turpitude, provided that such offence
is committed by him in the course of his employment.” (Emphasis provided)
8. Admittedly, the Department/Bank has failed to quantify as to how
much loss or the damage has been caused to the Bank. There are vague
pleadings to this effect and there is no finding.
9. Respondent No.3 is a Class IV Employee, who is liable to receive his
Gratuity after the date of his superannuation or retirement. On vague
assertions without quantifying the loss, the gratuity of Respondent No.3
could not have been withheld. The Petitioner is hence not justified
withholding the gratuity of the Employee/Respondent No.3 under sub-
section (6) of Section 4 of the Payment of Gratuity Act and for this reason
there is no ground to interfere with the Order, dated 5.7.2012.
10. Consequently, the Writ Petition fails and it is hereby dismissed.
11. This Court has been informed that by Interim Order, dated 13.3.2013,
an amount of `2,39,948 (Rupees Two Lakh Thirty Nine Thousand Nine
Hundred Forty Eight Only) has been deposited before this Court which has
been ordered to be deposited in the Nationalized Bank in the name of the
Registrar General of this Court.
12. This Court directs the Registrar General of this Court to withdraw the
said amount and give the entire amount, along with the accumulated interest
to Respondent No.3 - Shri Trilok Chand Sharma within a period of two
weeks from the date of production of a certified copy of this order. It is,
however, made clear that the remaining amount i.e., “interest” shall also be
paid by the Petitioner to Respondent No.3 within a period of four weeks
thereafter by the Petitioner.
  

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January 2021 Uttam Singh v. State of Uttarakhand 473
(DB) (Utt.) (Alok Kumar Verma, J.)
2021 (1) LLN 473 (DB) (Utt.)
IN THE HIGH COURT OF UTTARAKHAND
Ramesh Ranganathan, C.J. & Alok Kumar Verma, J.
Special Appeal No.508 of 2019
11.7.2019
Uttam Singh .....Appellant
Vs.
State of Uttarakhand and others .....Respondents
MINIMUM WAGES ACT, 1948 (11 of 1948), Sections 2(i) & 20 —
ALLAHABAD HIGH COURT RULES, 1952, Chapter VIII, Rule 5 —
‘Employee’ — Definition of — Daily Wagers — Claims under Act —
Whether Authority/Labour Commissioner exercising jurisdiction under
Act, acts as a ‘Tribunal’ — Maintainability of Special Appeal — Case of
Appellant that he was employed as Daily Wager in PWD for Salary at
`240 per days from 7.11.1984 to 31.7.1990 — His Wages and Dearness
Allowance not been paid — Filed Writ Petition No.991 of 2011 — Court
directed to file Claim Petition under Section 20 of Minimum Wages Act
— Authority under Act dismissed Claim Petition on ground that there is
no provision under Act for D.A. and other Daily Wages — Aggrieved,
Appellant filed Writ Petition — Single Judge dismissed it observing that
he was not Employee within meaning of Section 2(i) of Act as he was not
employed against existing vacancy and also that he is not covered under
Notification, dated 21.10.2005 which was relating to employment in
Agriculture sector only and he was employed with PWD — On
challenge, held, ‘Authority’ under Minimum Wages Act, 1948
particularly Section 20 thereof is constituted by State and invested with
Judicial powers as distinguished from purely Administrative or
Executive functions — Therefore, under Section 20, proceedings before
‘Authority’ have ‘trapping of a Court’ — Applying test laid down in
referred cases, held, ‘Authority/Labour Commissioner’ acts as
‘Tribunal’ — As a result instant Special Appeal not maintainable under
Rule 5, Chapter VIII of Allahabad High Court Rules, 1952 — Special
Appeal dismissed at admission stage. (Paras 36 to 42)
CASES REFERRED
Associated Cement Companies v. P.N. Sharma, AIR 1965 SC 1595 .......................................28
Bharat Bank Ltd. v. Employees of the Bharat Bank, 1950 SCR 459 .......................................24
Durga Shankar Mehta v. Raghuraj Singh, AIR 1950 SC 188...................................................28
Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874 ......................................28
Faquir Chand Gulati v. Uppal Agencies Pvt. Ltd., 2008 (4) CTC 170 (SC) ............................22
Hari Nagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669............26, 28

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474 LABOUR LAW NOTES 2021 (1) LLN

Hira Kalyan Das v. Additional Commissioner (Administration), Garhwal Region,

2008 (1) UD 5 .............................................................................................................20, 33
Intezar Hussain v. State of Uttarakhand, 2015 (2) UD 261 ..............................................20, 35
Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand, AIR 1963 SC 677 ...................................25
Kihoto Hollohon v. Shri Zachilhu, AIR 1993 SC 412..............................................................26
Mohd. Arif v. Mirza Glass Works, 2005 (107) FLR (129) ................................................19, 30
Pradeshik Cooperative Dairy Federation Ltd. v. Authority under Minimum Wages Act,
SplA. No.898 of 2015, dated 5.1.2016...................................................................20, 21, 23
Pratappur Sugar & Industries Ltd. Pratappur District Deoria v. Deputy Labour
Commissioner, U.P. Gorakhpur Region, Gorakhpur, 2000 (3) UPLBEC 2161 ....19, 20, 28
Shah Babulal Khimji v. Jayaben D. Kania, 1981 (4) SCC 8 ....................................................40
Shanta Kumar Belwal v. G.S. Bhandari & Co., 2011 (1) UD 44.......................................19, 40
Silk and Kapda Karmchari Union v. Deputy Labour Commissioner, Varanasi, Spl.A.D.
No.319 of 2008, dated 4.7.2012 .................................................................................19, 34
State of Assam v. Horizon Union, AIR 1967 SC 442.........................................................18, 21
Sudershan Singh Bedi v. Additional District Magistrate (Rent Control and Eviction
Officer), 1993 (1) ARC 265...................................................................................20, 27, 33
Sushil Kumar Agarwal v. Meenakshi Sadhu, 2019 (1) SCCD 350....................................22, 23
Uttam Singh v. State of Uttarakhand, W.P. No.2005 of 2016, dated 29.11.2017...................2, 5
Vajara Yojana Seed Farm v. Presiding Officer, Labour Court, 2003 (1) UPLBEC 496 ....20, 39
B.B. Sharma, Advocate for Appellant.
Paresh Tripathi, Chief Standing Counsel assisted by S.S. Chaudhary, learned Brief
Holder appearing for the Respondents.
Bhagwat Mehra, Advocate as Amicus Curiae
Finding — S.A. dismissed.
JUDGMENT
Alok Kumar Verma, J.
1. The Application in C.L.M.A. No.6661 of 2019, seeking condonation of
delay of 500 days in preferring the Special Appeal is not opposed by learned
Counsel for the Respondents. The Delay Condonation Application is
allowed. Delay is condoned.
2. This Intra-Court Appeal has been filed assailing the Judgment and
Order passed in ‘Uttam Singh v. State of Uttarakhand and another’, W.P.
No.2005 of 2016, dated 29.11.2017 whereby the learned Single Judge
dismissed the Writ Petition filed by the Appellant-Writ Petitioner.
3. Mr. Paresh Tripathi, learned Chief Standing Counsel assisted by Mr.
S.S. Chaudhary, learned Brief Holder appearing for the Respondents raised a
Preliminary Objection to the maintainability of this Special Appeal. He
contended that in the light of the provision of Rule 5 of Chapter VIII of the
Allahabad High Court Rules, 1952, applicable to High Court of Uttarakhand
under U.P. Re-organization Act, 2000, the remedy of filing an Intra-Court
Appeal is not available to the Appellant-Writ Petitioner.

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(DB) (Utt.) (Alok Kumar Verma, J.)
4. Mr. B.B. Sharma, learned Counsel for the Appellant-Writ Petitioner
refuting the above submission, contends that this Intra-Court Appeal is
maintainable.
5. In order to appreciate the issue which arises at the preliminary stage of
this Special Appeal, a brief reference to the factual background is necessary,
which is as follows:
The Appellant-Writ Petitioner filed the Writ Petition No.2005 of 2016
seeking a Writ in the nature of Certiorari for quashing the Order passed by
the Prescribed Authority/Labour Commissioner, Uttarakhand, Haldwani in
Uttam Singh v. Chief Engineer (Kumoun Kshatra) and others, Claim
Petition No.111 of 2013, dated 20.12.2014, a Writ in the nature of
Mandamus directing the Respondents to pay wages and dearness allowances
and other allowances to the Petitioner for the period from 7.11.1984 to
31.7.1990 for working in the post of Beldar (mate) as a Daily Wager in the
Public Works Department at Bhowali, District Nainital. The case of the
Appellant-Writ Petitioner is that he was employed as a Daily Wager in the
Public Works Department at Bhowali, District Nainital for a Salary @
`240 per day with effect from 7.11.1984 to 31.7.1990, for a total period of
six years, but his Wages of this period and dearness allowances have not
been paid as provided under the Minimum Wages Act, 1948. The Appellant-
Writ Petitioner earlier filed Writ Petition No.991 of 2011 ‘Uttam Singh v.
State of Uttarakhand and another’ under Article 226 of the Constitution of
India which was finally decided on 15.3.2013, in which the Petitioner was
directed to file a Claim Petition under Section 20 of the Minimum Wages
Act, 1948, if he desires. The Petitioner filed ‘Uttam Singh v. Chief
Engineer (Kumoun Kshatra), Lok Nirman Vibhag, Almora and others’,
Claim Petition No.111 of 2013, which was finally decided on 20.12.2014 by
the Authority under the Minimum Wages Act/Labour Commissioner,
Uttarakhand. The said authority dismissed the Claim Petition on the ground
that there is no provision for dearness allowance and other Daily Wages
under the Minimum Wages Act, 1948 for Daily Wagers.
6. Aggrieved by the said order, the Petitioner filed the Writ Petition. The
Writ Petition was decided on 29.11.2017. Learned Single Judge observed
that to bring a Workman within the purview of an “Employee” as defined
under Section 2(i), though, it classifies the nature of employment, i.e. skilled,
unskilled, manual or clerical, but what is relevant is that he should be an
Employee as defined under the Act. The term employed used in sub-section
(i) of Section 2, would denote an employment in terms of the rule as
applicable against a clear existing vacancy and will not imbibe and include
within its ambit the workman. It has never been the case of the Petitioner
either before the Prescribed Authority under the Minimum Wages Act, or
even for that purpose before this Court, that he has ever been employed by
the Department against an existing and clear vacancy. In that eventuality, the

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denial, which has been made by the Prescribed Authority, in relation to the
claim of payment of dearness allowance and, consequently, Minimum
Wages was legally justified, as it was not admissible to him. He further
places reliance on a Notification, as published in the official gazette of the
Government of India on 21.10.2005, which is nomenclatured as “Minimum
Rate of Wages payable to the Employees in the employment in agriculture”.
7. Learned Single Judge further observed that on a simple interpretation
of the nomenclature of this Notification, yet again, it would be applicable to
the Employees, who are under and in the regular cadre and are in the
employment in relation to the Agricultural Department. The said aspect is
further clarified from the head note of the notification itself which provides
that whatsoever the implication of the said Notification may be, it relates to
the revision of minimum rate of Wages payable to the Employees in the
Agriculture Department of the Central Government, required under the
proviso to sub-section 5 of the Minimum Wages Act. It is further clarified
that they have to be in employment, relating to agriculture only, to attract the
Notification, dated 21.10.2005. Since the Petitioner claims to be a Daily
Wager with the Public Works Department, he would not be able to bring
himself within the ambit of the Notification, dated 21.10.2005.
8. Regarding relief No.II, the learned Single Judge observed that without
going into the issue, pertaining to the delay in raising the claim, this relief
even otherwise cannot be granted by this Court, for the reasons that the
parameters contemplated for invoking a Writ of Mandamus, has not been
complied with, as it is not the case of the Petitioner that prior to approaching
this Court for payment of dearness allowance, he has simultaneously
approached the authorities for the same, and there has been a denial or non
consideration. In that eventuality, relief II cannot be granted. Therefore, the
Writ Petition was dismissed.
9. Feeling aggrieved, the Appellant-Writ Petitioner is before us.
10. Before we examine the contentions of both the parties, it is necessary
to consider the scope of Rule 5 of the Chapter VIII of the Allahabad High
Court Rules, 1952 which makes provisions for an Intra-Court Appeal. Rule 5
of the Chapter VIII of the Allahabad High Court Rules, 1952 reads as under:
“An Appeal shall lie to the Court from a Judgment not being a Judgment passed
in the exercise of Appellate jurisdiction in respect of a Decree or Order made by
a Court subject to the superintendence of the Court and not being an order made
in the exercise of revisional jurisdiction or in the exercise of its power of
superintendence or in the exercise of Criminal jurisdiction or in the exercise of
jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect
of any judgment, order or award—
(a) of a Tribunal, Court or statutory arbitrator made or purported to be made in
the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act

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January 2021 Uttam Singh v. State of Uttarakhand 477
(DB) (Utt.) (Alok Kumar Verma, J.)
or under any Central Act, with respect to any of the matters enumerated in the
State List or the Concurrent List in the Seventh Schedule to the Constitution, or
(b) of the Government or any Officer or authority, made or purported to be
made in the exercise or purported exercise of Appellate or revisional
jurisdiction under any such Act of one Judge”.
11. From a perusal of the aforesaid Rule, it is clear that no Special Appeal
will lie in the following matter:
(i) the Judgment passed by the Single Judge in the exercise of Appellate
jurisdiction, in respect of a Decree or order made by a Court subject to
the superintendence of the Court;
(ii) an order made by the Single Judge in the exercise of his revisional
jurisdiction;
(iii) an order made by the Single Judge in the exercise of the power of
superintendence of the High Court;
(iv) an order made by the Single Judge in the exercise of Criminal
jurisdiction;
(v) an order made by the Single Judge in the exercise of the jurisdiction
conferred by Article 226 or Article 227 of the Constitution of India in
respect of any Judgment, Order or Award by—
“(a) the Tribunal,
(b) the Court, or
(c) Statutory arbitrator, made or purported to be made in the exercise or
purported exercise of jurisdiction under any Uttar Pradesh Act (as applicable in
the State of Uttarakhand) or under any Central Act, with respect to any of the
matters enumerated in the State List or the Concurrent List in the Seventh
Schedule to the Constitution, or
(vi) an order made by the Single Judge in respect of any Judgment, Order
or Award of the Government or any Officer or Authority made or
purported to be made in the exercise of the Appellate or revisional
jurisdiction under any Uttar Pradesh Act (as applicable in the State of
Uttarakhand) or under any Central Act, with respect to any of the matters
enumerated in the State List or the Concurrent List in the Seventh
Schedule to the Constitution of India.
12. Mr. Paresh Tripathi, learned Chief Standing Counsel assisted by Mr.
S.S. Chaudhary, learned Brief Holder appearing for the State-Respondents,
contended that the impugned Order, dated 20.12.2014 was passed by the
“Authority” under Section 20 of the Minimum Wages Act; that “Authority”
is Tribunal; therefore, no Special Appeal is maintainable against the
Judgment and Order, dated 29.11.2017 passed by the learned Single Judge in

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478 LABOUR LAW NOTES 2021 (1) LLN

W.P.(M/S) No.2005 of 2016, which was filed by the Appellant-Writ

Petitioner against the Award, dated 20.12.2014 passed by the
Authority/Labour Commissioner under Section 20 of the Minimum Wages
Act.
13. Mr. B.B. Sharma, learned Counsel for the Appellant, submitted that
the impugned Order, dated 20.12.2014 was passed by the “Authority”/
Labour Commissioner; and, therefore, the “Authority” is not a “Tribunal”.
14. Therefore, the question to be considered is whether the ‘Authority’/
Labour Commissioner, while exercising jurisdiction under the Minimum
Wages Act, 1948, particularly Section 20 thereof, acts as a Tribunal.
15. We requested Mr. Bhagwat Mehra, learned Advocate to assist this
Court on this question of law.
16. We have considered the submissions of the learned Counsel for the
parties and Mr. Bhagwat Mehra, Advocate, learned Amicus Curiae.
17. In order to decide the said question, it is necessary to refer to the
provision of Section 20 of the Minimum Wages Act. Section 20 of the
Minimum Wages Act reads as under:
“20. Claims.—(1) The appropriate Government may, by Notification in the
Official Gazette, appoint any Commissioner for Workmen’s Compensation or
any Officer of the Central Government exercising functions as a Labour
Commissioner for any region, or any Officer of the State Government not below
the rank of Labour Commissioner or any other Officer with experience as a
Judge of a Civil Court or as stipendiary Magistrate to be the Authority to hear
and decide for any specified area all claims arising out of payment of less than
the minimum rates of wages or in respect of the payment of remuneration for
days of rest or for work done on such days under Clause (b) or Clause (c) of sub-
section (1) of Section 13 or of Wages at the overtime rate under Section 14, to
Employees employed or paid in that area.
(2) Where an Employee has any claim of the nature referred to in sub-section (1),
the Employee himself, or any legal practitioner or any official of a registered
Trade Union authorized in writing to act on his behalf, or any Inspector, or any
person acting with the permission of the Authority appointed under sub-section
(1), may apply to such Authority for a direction under sub-section (3):
Provided that every such application shall be presented within six months from
the date on which the Minimum Wages or other amount became payable:
Provided further that any application may be admitted after the said period of six
months when the Applicant satisfies the Authority that he had sufficient cause
for not making the application within such period.
(3) When any application under sub-section (2) is entertained, the Authority shall
hear the Applicant and the Employer, or give them an opportunity of being
heard, and after such further Inquiry, if any, as it may consider necessary, may,

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January 2021 Uttam Singh v. State of Uttarakhand 479
(DB) (Utt.) (Alok Kumar Verma, J.)
without prejudice to any other penalty to which the Employer may be liable
under this Act, direct—
(i) in the case of a claim arising out of payment of less than the minimum rates
of Wages, the payment to the Employee of the amount by which the Minimum
Wages payable to him exceed the amount actually paid, together with the
payment of such Compensation as the Authority may think fit, not exceeding
ten times the amount of such excess,
(ii) in any other case, the payment of the amount due to the Employee, together
with the payment of such Compensation as the Authority may think fit, not
exceeding ten rupees, and the Authority may direct payment of such
Compensation in cases where the excess or the amount due is paid by the
Employer to the Employee before the disposal of the application.
(4) If the Authority hearing any application under this section is satisfied that it
was either malicious or vexatious, it may direct that a penalty not exceeding fifty
rupees be paid to the Employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered—
(a) if the Authority is a Magistrate, by the Authority as if it were a Fine
imposed by the Authority as a Magistrate, or
(b) if the Authority is not a Magistrate, by any Magistrate to whom the
Authority makes application in this behalf, as if it were a fine imposed by such
Magistrate.
(6) Every direction of the Authority under this Section shall be final.
(7) Every Authority appointed under sub-section (1) shall have all the powers of
a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the
purpose of taking evidence and of enforcing the attendance of Witnesses and
compelling the production of documents, and every such Authority shall be
deemed to be a Civil Court for all the purposes of Section 195 and Chapter
XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).”
18. Mr. B.B. Sharma, learned Counsel for the Appellant submitted that a
Labour Court is not a Tribunal under the Industrial Disputes Act, 1947; and,
therefore, the “Authority” under Section 20 of the Minimum Wages Act is
also not a Tribunal. In support of his submission, he cited the Judgment of
the Hon’ble Apex Court in State of Assam v. Horizon Union and another,
AIR 1967 SC 442.
19. Learned Counsel for the Respondents on the other hand, relied upon
the Judgments of the Hon’ble Allahabad High Court in Pratappur Sugar &
Industries Ltd. Pratappur District Deoria v. Deputy Labour Commissioner,
U.P. Gorakhpur Region, Gorakhpur and others, 2000 (3) UPLBEC 2161,
Mohd. Arif v. Mirza Glass Works and others, 2005 (107) FLR (129), Silk
and Kapda Karmchari Union v. Deputy Labour Commissioner, Varanasi
and others, Spl.A.D. No.319 of 2008, dated 4.7.2012 as well as the
Judgment of this Court in Shanta Kumar Belwal v. G.S. Bhandari & Co.,
2011 (1) UD 44.

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20. Mr. Bhagwat Mehra, Advocate, learned Amicus Curiae, cited before
us, the Judgments in Sudershan Singh Bedi v. Additional District
Magistrate (Rent Control and Eviction Officer), Varanasi and others,
Allahabad Rent Cases, 1993 (1) ARC 265, Pratappur Sugar & Industries
Limited, Pratappur district Deoria (Supra), Vajara Yojana Seed Farm vs.
Presiding Officer, Labour Court, 2003 (1) UPLBEC 496, Hira Kalyan Das
v. Additional Commissioner (Administration), Garhwal Region and others,
2008 (1) UD 5, Intezar Hussain and another v. State of Uttarakhand and
others, 2015 (2) UD 261 and Judgment of Hon’ble Allahabad High Court
passed in the Pradeshik Cooperative Dairy Federation Ltd. v. Authority
under Minimum Wages Act and two others, SplA. No.898 of 2015, dated
5.1.2016.
21. Mr. B.B. Sharma, learned Counsel for the Appellant, argued that, in
Section 20 of the Minimum Wages Act, the word “Authority” is used; and
therefore, the impugned Order, dated 20.12.2014, which was passed by the
“Authority/Labour Commissioner” is not a “Tribunal”. Learned Counsel for
the Appellant argued that a Labour Court is also not a Tribunal and in the
support of this submission, the learned Counsel for the Appellant relied upon
the Judgment of Hon’ble Apex Court in State of Assam v. Horizon Union &
another, AIR 1967 SC 442; in which the Hon’ble Apex Court has held that
Labour Court is not a “Tribunal”. Learned Counsel for the Appellant further
argued that Pradeshik Cooperative Dairy Federation Ltd. v. Authority
under the Minimum Wages Act, was filed before the Hon’ble Allahabad
High Court, and the said Special Appeal was allowed on 5.1.2016.
22. In Sushil Kumar Agarwal v. Meenakshi Sadhu and others, 2019 (1)
SCCD 350, the Appellant therein placed reliance on the decision in Faquir
Chand Gulati v. Uppal Agencies Pvt. Ltd., 2008 (4) CTC 170 (SC) : 2008
(10) SCC 345, where the issue was whether a Landowner, who enters into an
agreement with the Builder, for construction of an apartment building is a
“consumer” entitled to maintain a Complaint against the builder as a Service
Provider under the Consumer Protection Act, 1986. The Hon’ble Apex Court
has held, “The issue involved before this Court was in relation to the
interpretation of the Consumer Protection Act, 1986 and not on the
maintainability of a Suit filed by the developer against the Owner for
Specific Performance in view of Section 14(3)(c) of the Act. Therefore, the
decision cannot be relied upon in relation to the issue before us”.
23. In Pradeshik Cooperative Dairy Federation Ltd. v. Authority under
Minimum Wages Act and two others, Spl.A. No.898 of 2015, dated
5.1.2016, the issue was not whether the “Authority” under Section 20 of the
Minimum Wages Act was a “Tribunal” or not; and, therefore, the issue was
not regarding the maintainability of the Special Appeal in the light of Rule 5
of Chapter VIII of the Allahabad High Court Rules, 1952. In the Instant
Special Appeal, the issue involved is whether the “Authority” under Section

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January 2021 Uttam Singh v. State of Uttarakhand 481
(DB) (Utt.) (Alok Kumar Verma, J.)
20 of the Minimum Wages Act is a “Tribunal”, if yes, whether this Special
Appeal is maintainable in the light of the provision of Rule 5 of the Chapter
VIII of the Allahabad High Court Rules, 1952. Therefore, in the light of the
principle laid down by the Hon’ble Apex Court in Sushil Kumar (Supra),
the decision of the Hon’ble Allahabad High Court in Pradeshik Cooperative
Dairy Federation Ltd. v. Authority under Minimum Wages Act and two
others, Spl.A. No.898 of 2015, dated 5.1.2016 (Supra), cannot be relied
upon in relation to the issue involved in the Instant Special Appeal.
24. A Tribunal, generally, is any person or institution with authority to
Judge, adjudicate on, or determine claims or disputes, whether or not, it is
called a tribunal in its title. Nomenclature may be different. In Bharat Bank
Ltd. v. Employees of the Bharat Bank, 1950 SCR 459, the Hon’ble Apex
Court has observed, “......it is to be noticed that owing to the intricate and
complex system of Government that exists in a modern State and the vast
expansion of social legislation of all sorts that have taken place in England
and in other countries including own, within the last few decades, the so
called administrative and quasi-judicial Tribunals have come to be a
permanent feature of our social and political system. They function as
adjudicating bodies in disputes concerning a large number of economic and
social affairs. In a sense they are governmental bodies appertaining to the
executive and not to the judicial branch of the State, though in various
matters they are armed with judicial powers analogous to those normally
carried out by Courts of law”.
25. In Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand and others,
AIR 1963 SC 677, the Hon’ble Apex Court has observed “Question whether
a decision is judicial or is purely administrative, often arises when
jurisdiction of the Superior Courts to issue Writs of Certiorari is invoked.
Often the line of distinction between decisions judicial and administrative is
thin; but the principles for ascertaining the true character of the decisions are
well-settled. A judicial decision is not always the act of a Judge or a Tribunal
invested with power to determine questions of law or fact; it must however
be the act of a body or authority invested by law with authority to determine
questions or disputes affecting the rights of citizens and under a duty to act
judicially. A judicial decision always postulates the existence of a duty laid
upon the authority to act judicially. Administrative authorities are often
invested with authority or power to determine questions, which affect the
rights of citizens”.
26. In Kihoto Hollohon v. Shri Zachilhu, AIR 1993 SC 412, the Hon’ble
Apex Court referring to its earlier decision in Harinagar Sugar Mills Ltd. v.
Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669, set out a test to
determine whether an authority exercising adjudicatory powers is a Tribunal
or not; ....there is a lis an affirmation by one party and denial by another and
the dispute necessarily involves a decision on the rights and obligations of

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482 LABOUR LAW NOTES 2021 (1) LLN

the parties to it and the authority is called upon to decide it, there is an
exercise of judicial power. That authority is called a Tribunal, if it does not
have all the trappings of a Court.
27. In Sudershan Singh Bedi v. Additional District Magistrate (Supra),
the Division Bench of the Hon’ble Allahabad High Court, while dealing the
controversy of maintainability of Special Appeal under U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, has
observed, “The word “Tribunal” has not been defined under this Act, but
now it is settled principle of law that a Tribunal is a body or an authority
which is invested with the judicial power to adjudicate on question of law or
fact affecting the right of parties in a judicial manner”. In Para 15, it was
observed, “The declaration of vacancy by Rent Control and Eviction Officer
contemplates pleadings and evidence and the Rent Control and Eviction
Officer is invested with the power of a Civil Court in regulating the
procedure for taking evidence etc. He is also to determine the dispute after
taking into account the objections raised by the parties and has to pass
reasoned order”. In these circumstances, it was held that the Rent Control
and Eviction Officer acts as a Tribunal and order of the Rent Control and
Eviction Officer shall be treated as an order of Tribunal.
28. In Pratappur Sugar and Industries Limited, Pratappur, District
Deoria v. Deputy Labour Commissioner, U.P. Gorakhpur Region,
Gorakhpur and others, 2000 (3) UPLBEC, 2161, the Division Bench of
Hon’ble Allahabad High Court has observed that the dictionary meaning
shows that Tribunal is a body authorized by law to decide disputes and
impart justice. The Hon’ble Division Bench referred to the Judgment of
Hon’ble Apex Court in Durga Shankar Mehta v. Raghuraj Singh, AIR
1950 SC 188, in which it was held that the expression “Tribunal” as used in
Article 136 of the Constitution of India meant the same thing as Court but
includes within its submit adjudicating bodies, provided they are constituted
by State and are invested with judicial power as distinguished from purely
administrative or executive functions. The Hon’ble Division Bench referred
the decision of Hon’ble Apex Court in Hari Nagar Sugar Mills v. Shyam
Sunder, AIR 1961 SC 1669, in which the Hon’ble Apex Court has held that
by “Tribunal” is meant those bodies of men, who are appointed to decide
controversies arising under certain special laws. The Hon’ble Division
Bench also referred the Judgment of Hon’ble Constitution Bench in
Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874, in
which the Hon’ble Apex Court has held, “...The expression “a Court” in the
technical sense is a Tribunal constituted by the State as a part of the ordinary
hierarchy of Courts, which are invested with the State’s inherent judicial
powers. The Tribunal as distinguished from the Court, exercises judicial
powers and decides matters brought before it judicially or quasi-judicially,
but it does not constitute a Court in the technical sense. The Tribunal,
according to the dictionary meaning, is a seat of justice; and in the discharge

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January 2021 Uttam Singh v. State of Uttarakhand 483
(DB) (Utt.) (Alok Kumar Verma, J.)
of its functions, it shares some of the characteristics of the Court. A domestic
Tribunal appointed in Departmental proceedings, for instance, or instituted
by an Industrial Employer cannot claim to be a Tribunal under Article
136(1). Purely Administrative Tribunals are also outside the scope of the
said Article. The Tribunals which are contemplated by Article 136(1) are
clothed with some of the powers of the Courts. They can compel Witnesses
to appear, they can administer oath, they are required to follow certain rules
of procedure: the proceedings before them are required to comply with rules
of natural justice, they may not be bound by the strict and technical rules of
evidence, but, nevertheless, they must decide on evidence adduced before
them; they may not be bound by other technical rules of law, but their
decisions must, nevertheless, be consistent with the general principles of
law. In other words, they have to act judicially and reach their decisions in
an objective manner and they cannot proceed purely administratively or base
their conclusions on subjective tests or inclinations. The procedural rules
which regulate the proceedings before the Tribunals and the powers
conferred on them in dealing with matters brought before them, are
sometimes described as the “trappings of a Court” and in determining the
question as to whether a particular body or authority is a Tribunal or not,
sometimes a rough and ready test is applied by enquiring whether the said
body or authority is clothed with the trappings of a Court”. In Para 8, it was
observed, “....it would thus be noticed that apart from the importance of the
trappings of a Court, the basic and essential condition, which makes an
authority or a body a Tribunal under Article 136, is that it should be
constituted by the State and should be invested with the State’s inherent
judicial power...”. The Hon’ble Division Bench also referred to the
Judgment of Hon’ble Constitution Bench of the Supreme Court in
Associated Cement Companies v. P.N. Sharma and another, AIR 1965 SC
1595, wherein, it was held, “.....Judicial functions and judicial powers are
one of the essential attributes of a sovereign State, and on considerations of
policy, the State transfers its judicial functions and powers mainly to the
Courts established by the Constitution but that does not affect the
competence of the State, by appropriate measures, to transfer a part of its
judicial powers and functions to Tribunals by entrusting to them the task of
adjudicating upon special matters and disputes between parties. It is really
not possible or even expedient to attempt to describe exhaustively the
features, which are common to the Tribunals and the Courts, and features
which are distinct and separate. The basis and the fundamental features
which is common to both the Courts and the Tribunals is that they discharge
judicial functions and exercise judicial powers, which inherently vest in a
sovereign State.
In considering the question about the status of any body or authority as a
Tribunal under Article 136(1) the main test to be applied is whether the body
or authority has been constituted by the State and has been clothed with the

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State’s inherent judicial power to deal with disputes between parties and
determine them on the merits fairly and objectively”.
29. Applying the test laid down by the Hon’ble Supreme Court, the
Division Bench has held that an Additional/Deputy Labour Commissioner
while exercising power under sub-clause (6) of Clause LL of the Standing
Orders functions as a Tribunal.
30. Before the Division Bench of the Hon’ble Allahabad High Court in
Mohd. Arif v. Mirza Glass Works and others (Supra), the question for
consideration was as to whether the Prescribed Authority under the Payment
of Wages Act, 1936 is a Tribunal. The Division Bench extracted Section
15(1) and Section 18 of the Payment of Wages Act, 1936, which are as
below:
“15. Claims arising out of deductions from Wages or delay in payment of Wages
and penalty for malicious or vexatious claims.— (1) The State Government may,
by Notification in the Official Gazette, appoint [a presiding officer of any Labour
Court or Industrial Tribunal, constituted under the Industrial Disputes Act, 1947
(14 of 1947), or under any corresponding law relating to the investigation and
settlement of Industrial Disputes in force in the State or] any Commissioner for
Workmen’s Compensation or other Office with experience as a Judge of a Civil
Court or as a stipendiary Magistrate to be the authority to hear and decide for any
specified area all claims arising out of deductions from the Wages, or delay in
payment of Wages, [of persons employed or paid in that area, including all
matters, incidental to such claims.............”]
“Section 18 provides for powers of authorities appointed under Section 15 which
is extracted below:
18. Powers of authorities appointed under Section 15.— Every authority
appointed under sub-section (1) of Section 15 shall have all the powers of a
Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the
purpose of taking evidence and of enforcing the attendance of Witnesses and
compelling the production of documents and every such authority shall be
deemed to be a Civil Court for all the purposes of Section 195 and of [Chapter-
XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).]”
31. The Division Bench has held, “From a conjoint reading of Section
15(1) with Section 18 of the Payment of Wages Act, 1936, it is clear that the
authority empowered to decide claims arising out of deduction from Wages
is entrusted with all the powers of a Civil Court under the Code of Civil
Procedure for the purposes of taking evidence and for attendance and
compelling the production of documents. Thus, the said authority has the
trapping of Court and is a Tribunal. Any order, thus passed by the authority,
under Section 15 of the Payment of Wages Act, 1936, is an Order passed by
Tribunal. The Special Appeal being barred against an order of one Judge
exercising Jurisdiction under Article 226/227 of the Constitution arising out
of a Writ Petition from an order of the Tribunal, the Preliminary Objection
raised by Counsel for the Respondents has substance. The Appeal is barred

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January 2021 Uttam Singh v. State of Uttarakhand 485
(DB) (Utt.) (Alok Kumar Verma, J.)
under Chapter-VIII, Rule 5 of the Rules of the Court and is dismissed as not
maintainable”.
32. The provision of Section 20 of the Minimum Wages Act, 1948 and
Section 15 as well as Section 18 of the Payment of Wages Act are similar
except with some variations. There is no reason why the interpretation
placed on Sections 15 and 18 of the Payment of Wages Act should not be
applied in interpreting Section 20 of the Minimum Wages Act.
33. In the matter of Hira Kalyan Das v. Additional Commissioner
(Administration) (Supra), the Appellant-Petitioner filed the Writ Petition
seeking quashing of the Judgment and Order, dated 31.7.1984 passed by
Prescribed Authority/Sub-Divisional Officer [under the U.P. Imposition of
Ceiling on Land Holdings Act, 1960 (Act No. 1 of 1961)], Dehradun and the
Judgment and Order, dated 15.3.1990 passed by Additional Commissioner
(Administration), Garhwal Region, Pauri, Dehradun (Appellate Authority
under Act No.1 of 1961). This High Court, after referring to the Judgment
passed in Sudershan Singh Bedi (Supra), has held that against the Judgment
passed in Writ Petition, which was dismissed, in exercise of the jurisdiction
under Article 226 or Article 227 of the Constitution of India, a Special
Appeal under Rule 5 of Chapter VIII of the Allahabad High Court Rules,
1952 is not maintainable.
34. The Orders dated 8.3.2001, impugned in the Civil Misc. Writ
Petition, were passed by the Deputy Labour Commissioner, Varanasi in the
exercise of his jurisdiction under the Uttar Pradesh Industrial Peace (Timely
Payment of Wages) Act, 1978. The learned Single Judge, by the Judgment
and Order, dated 10.12.2007, allowed the Writ Petition. The Special Appeal
was filed against the Judgment and Order of the learned Single Judge. The
Division Bench of the Hon’ble Allahabad High Court, in Special Appeal
Defective No.319 of 2008, Silk and Kapda Karmchari Union (Supra), has
held on 4.7.2012 that the Labour Commissioner, while exercising the power
under the 1978 Act, particularly Section 3 thereof, acts as a Tribunal.
35. The Order impugned, dated 3.8.2007 was passed by the Prescribed
Authority under the Uttar Pradesh Public Premises (Eviction of
Unauthorized Occupants) Act, 1972. That order was not a final decision. The
learned Single Judge dismissed the Writ Petition on merit. Against the
Judgment and Order of the learned Single Judge, Special Appeal was
preferred. The Division Bench in Intezar Hussain and another (Supra) held
that the Prescribed Authority would be a Tribunal.
36. Reverting to the question whether this Special Appeal is maintainable
or not, we must consider the scheme of the Act. The Minimum Wages Act
had been passed for the welfare of Labour deriving legislative competence
from Item No.27 of the Concurrent Legislative List in the Seventh Schedule
to the Government of India Act, 1935, falls under Item No.24 of List III-

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486 LABOUR LAW NOTES 2021 (1) LLN

Concurrent List in the Seventh Schedule of the Constitution of India. The

object of the Act is to prevent exploitation of the worker and for that purpose
it aims at fixation of Minimum Wages which the Employers must pay and to
decide all claims arising out of payment of less than the minimum rates of
wages, or in respect of the payment of remuneration for days of rest or for
work done on such days under Clause (b) or Clause (c) of sub-section (1) of
Section 13 or of Wages at the overtime rate under Section 14, to employees
employed or paid in that area, “Authority”/Labour Commissioner is
appointed by the State Government. Therefore, the “Authority” is appointed
to decide controversies arising under this Special Law. The “Authority”/
Labour Commissioner records findings after hearing both the parties or
giving them an opportunity of being heard and after such further Enquiry, if
any, as it may the authority consider necessary. Sub-section (6) of Section 20
lays down that the direction issued by the “Authority” shall be final.
Therefore, the direction issued by the “Authority” shall not be questioned by
any party before any Court and thus a finality is attached to the direction
issued by the Authority. For issuing the direction, the “Authority” has been
given, by sub-section (7), all the powers of a Civil Court for the purpose of
taking evidence and of enforcing the attendance of Witnesses and
compelling the production of documents. The said sub-section lays down
that every such authority shall be deemed to be a Civil Court for all the
purposes of Section 195 and Chapter XXXV of the Code of Criminal
Procedure, 1898 (5 of 1898) (Section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973). The authority has been constituted by the State
and has been clothed with the State’s inherent judicial power to deal with
disputes between the parties and to determine them on merits, fairly and
objectively. The “Authority” under the Minimum Wages Act, 1948,
particularly Section 20 thereof, is constituted by the State and is invested
with judicial power as distinguished from purely administrative or executive
functions.
37. Therefore, under Section 20 of the Minimum Wages Act, the
proceedings before the “Authority”/Labour Commissioner have the
“trapping of a Court”.
38. Applying the test laid down by the decisions as above mentioned, it is
clear that the “Authority”/Labour Commissioner, while exercising the power
under the Minimum Wages Act, 1948, particularly Section 20 thereof, acts
as a “Tribunal”.
39. In Vajara Yojana Seed Farm (Supra), the Division Bench of Hon’ble
Allahabad High Court, after analyzing the provision of Rule 5 of Chapter
VIII of the Allahabad High Court Rules, 1952, held that a Special Appeal,
questioning the order of the learned Single Judge setting aside an Award of
the Labour Court, was not maintainable.

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January 2021 Uttam Singh v. State of Uttarakhand 487
(DB) (Utt.) (Alok Kumar Verma, J.)
40. In Shanta Kumar Belwal (Supra), a Division Bench of this High
Court observed that a right of Appeal is a creature of a statute and a litigant
does not have an inherent right to prefer the Appeal against an order or
Judgment unless such a right is conferred to the litigant by law as held by the
Hon’ble Apex Court in the case of Shah Babulal Khimji v. Jayaben D.
Kania and another, 1981 (4) SCC 8, wherein it was held that the right of an
Appeal, available to a litigant, depends on the Statute creating a right to
Appeal, and the Order must be an order made appealable by the Statute and
has to satisfy the test. The Division Bench has held that the provision of Rule
5 of Chapter VIII of the Rules of the Court makes it absolutely clear that no
Appeal shall lie against a Judgment rendered in the exercise of jurisdiction
conferred under Article 226 & Article 227 of the Constitution of India in
respect of any Judgment, order or an Award of a Tribunal.
41. For the reasons discussed above, in the result, the Instant Special
Appeal filed against the Judgment and Order, dated 29.11.2017 of learned
Single Judge, passed in Writ Petition No.2005 of 2016 (M/S), is not
maintainable under Rule 5 of Chapter VIII of the Allahabad High Court
Rules, 1952.
42. The Special Appeal is liable to be dismissed as not maintainable. The
Special Appeal is accordingly dismissed at the stage of admission. However,
on the facts and in the circumstances of the case, there will be no order as to
costs.
43. Before we part with this Special Appeal, we place on record our deep
appreciation of the valuable assistance rendered to this Court by Mr.
Bhagwat Mehra, Advocate, learned Amicus Curiae, in this matter.
  

Labour Law Notes / January-2021