No time limit for reference

Industrial Disputes Act 1947- Section 10(1) - U.P. Industrial Disputes Act 1947 - Section 4-K - Reference - Order making reference passed by State Government - for adjudication over issue of promotion as alleged by respondent workmen - No time limit fixed for making the reference - Dispute still existed till 1993, when the claim raised by respondent - Delay, therefore, hasf been correctly condoned by Labour enforcement and conciliation officer - and thereafter, the reference made by State Government - No merit in writ petition found and the same is dismissed.

The word 'any time' mentioned in the above section indicates to period without the limitation, however while considering the time limit the factual position whether the dispute existed at the day of reference is to be taken into consideration. Bharat Heavy Electricals Ltd V/s State of Uttarakhand and others [2010(127)FLR387] Uttarakhand High Court

Payment of Wages Act 1936

Payment of Wages (Procedure) Rules 1937:-

Rule 8 - limitation act 1963 - section 5- payment of wages act 1936 section 15(2) second proviso- Ex parte order - power to se aside- governed by Rule 8 of the 1937 Rules- Authority is not a civil Court - Section 5 of Limitation Act 1963 does not automatically apply without the Act making any provision for such application - order refusing to condone the delay do not suffer from any illegality. A.P.H.C.

Payment of Gratuity Act 1972

Withholding Gratuity:-
Payment of Gratuity Act 1972- Gratuity - withholding of gratuity- not permissible under any circumstances - except as enumerated in section 4(6). Section 4(6) and 4(1) - recovery from gratuity amount - Services of petitioner not terminated but as a punishment order passed for recovery of amount and a censure entry was awarded - Therfore, none of conditions falls under Section 4(6) of Act. Amount has been worngly recovered from gratuity payable- Even if the petitioner has given an application permitting to recover from gratuity amount- Recovered amount shall be refunded. Alld. H.C - L.B. dated 07-01-2009 in W.P. no. 3744 of 2007 between Amod Prasad Rai V/s State of U.P. [2009(123)FLR202]

Deduction from Gratuity:-

Deduction from - salary was refixed and to adjust excess payement from gratuity payable - After retirement - Assuming that the pay fixation was incorrect but after ages it could not be corrected behind the back of petitioner - Respondents are directed not to duduct any amount from gratuity and if deducted, it should be refunded. Alld. H.C. dated 17-9-2009 in WP no. 3549 of 2008 between Mahpal Singh Chauhan V/s State of U.P. (Irrigation Dept) [2009(123)FLR765]

More Beneficial Theory/ overriding effect:

Section 2(d), 3 and 4(5)- Controlling Authority - responsible for administration of Act- No jurisdiction conferred upon the Controlling Authority to deal with any issue under section 4(5) as to whether terms of gratuity payable under any award or agreement or contract is more beneficial to employee than that under the Act- Sub section 4 of Section 5 protects right of employee to receive better terms of gratuity under award, agreement or contract with employer than benefits conferred under the Act.

Section 4 and 14- Provisions under -shall have effect notwithstanding anything inconstintant therein, contained in any enactment or any instrument or contract- Right to receive gratuity - cannot be defeated by any instrument or contract.

Section 4(1), 2(e) and 5 - Payment of gratuity - availability of benefits of- Appellant bank an establishment and an employer within the meaning of provisions of the Act- Termination of employment of employee after rendering continuous service for not less than five years or superannutation or resignation or retirement- Gratuity payable is statutory right - cannot be taken away except in accordance with the provisions of the Act.

Section 5 - exemption - cannot be granted by any Government unless established that employees are in receipt of gratuity or pension more favourbale than that conferred under the Act.

S.C. dated 15-12-2009 in Civil Appeal no. 1478 of 2004 beween Allahabad Bank v/s All India Allahabad Bank Retired Employees Association. [2010(124)FLR192].

Corporation made its own scheme for gratuity:

Section 2(f) and 4(5)- Gratuity - Order directing the petitioner to pay the amount of gratuity to concerned workmen - Provisions of Act apply in the cases - as the petitioner - Corporation is "employer" - And corporation cann not say that the Act does not apply - Merely because coporation hasf made their own scheme of Gratuity - Orders passed by the authority are upheld. There is no exemption under the Gratuity Act 1972 in favour of the petitioner - corporation and therefore Payment of Gratuity Act 1972 would be applicable to the petitioner - Corporation also.

Contract Labour (Regulation and Abolition) Act 1970

Direct Emoployment:-

Section 10 - Contract Labour- Direct employment- merely because the contract labour worker is under supervision of officers of principal employer- it cannot be taken as evidence of direct employment under principal employer. S.C. dated 13-4-2009 in civil appeal no. 2244 of 2002 between IAAI v/s International Air Cargo workers Union and another, [2009(123)FLR321]

Service Law

Withholding Pension and Gratuity during pendency of Vigilance case:

Petitioner's gratuity was withheld pending vigilance proceedings which have proceeded the criminal case- question of entitlement of petitioner to payment of gratuity depend upon applicability of certain rules and regulations- Under provisions of regulation 919-A of Civil Service Regulations, the petitioner is not entitled to payment of gratuity during pendency of criminal case - And as a criminal case is pending against the petitioner - No case for interference under Article 226 has been made out. Pension includes gratuity. All.H.C. dated 13-08-2009 in WP no. 52565 of 2000 : Shri Pal Vaish V. U.P. Power Corporation Ltd. {2009(123)FLR794}

Workmen's Compensation Act 1923

Awarding amount more than Claimed:
Section 3 - Claim for compensation - claimants having discharged the initial burden of proving that the deceased workman was in employment of A.P. Trans. Co. and the respondents having failed to adduce any evidence in rebuttal, no exception can be taken to the finding recorded by the Commissioner for Workmen's Compensation in favour of the claimants. Section 4(1) Just Compensation - No bar on the power of the Commissioner of Workmen's Compensation to award an amount excess the amount claimed by the claimants if the claimants are found entitled to the said amount as per Schedule IV - Leading case Madhr Singh v. Jashwant Singh {1997 ACJ 517 (SC)} referred- Appeal dismissed. - A.P. H.C. dated 02-06-2009 in Civil Misc Appeal No. 243 of 2002 between Oriental Insurance co. v/s N. Sarojini and other. {2009(123)FLR892}

Accident in course of Employment:-

Section 3 and 4 - Accident arising out of and in the course of employment - Deceased was working as transport supervisor - was sent to Gwalior with on Pravidbhai transport in charge, to bring back a stuck off vehicle - He died due to mental and physical strain while engaged in such exercise- Held, there was direct nexus between the death of the deceased and his employment - No perversity in the order of the Commissioner granting compensation of the claimant- Appeal dismissed. Guj. H.C. dated 9-4-09 in FAFO no. 5709 of 2008 with Civil Application no.14427 of 2008 Between Mysore Ammonia Supply Corporation V/s Kashiben Jashbhai Patel. [2009(123)FLR368].

Interest:-

Section 4-A(3) and 3(1) - Compensation - Payment of interest - Employer is liable to pay compensation from the date of accident itself - And interest will be charged from expiry of one month from the date of accident - Interest on awarded sum has to be awarded - And insurance company is directed to pay interest @ 12% till deposit of awarded amount before the Commissioner. Cal. H.C. dated 16-9-2009 in FMAT no. 918/2009 with CAN no. 7496/2009 between Sarbeswar Bhunimali and Ardhendu Kumar Roy. [2009(123)FLR1084]

Disability:-

Section 2(1)(i) and 22 - Compensation under against total disablement - Legality of- Total disablement meaning of- if a workman suffers physical disablement to a lesser extent ie 25%, 40%, 50% etc., if such physical disablement itself totally incapacitate the workman from doing any work for which he was capable of performing before accident it can be treated total disablement - Workman a driver- suffered disablement of 45% - in capable of performing the duties of driver as his right leg was shortened - can never be driver in future - Suffered total disablement - No interference warranted A.P.H.C. dated 8-4-2009 in CMA no. 1266 of 2004 between New India Assurance Co. Ltd V/s A. Narsimhulu. [2009(123)FLR57]

Section 4, 4(1)(c)(ii) and 2(1)(1) Compensation -

claimant 25 year old lorry driver- suffered injuries in vehicular accident- His right leg below knee amputate - loss of one leg meant total disablement and unfit for work of driver - Loss of 100% earning capacity correctly assessed by the Commissioner - Compensation of Rs. 520584 awarded by the commissioner restored. S.C. dated 14-9-2009 in Civil Appeal no. 7641 of 2009 S.Suresh v/s Oriental Insurance Co. Ltd. [2010(124)FLR1].

Heart Attack

Compensation - under Workmen's Compensation Act 1923 - death of skilled employee in night shift due to heart attack- liability of employer to pay compensation- consideration of- when deceased has developed chest pain due to stress and strain while discharging the duties night hours- Commissioner for Workmen's Compensation is justified in awarding compensation to the claimants - No interference warranted. Karnataka High Court dated 03-07-2009 in F.A. no. 6770 of 2004(W.C.) between Management of HAL Helicopter Division Bangalore and Smt L. Fathima Mary and others. {2010 (124) FLR 883}

Minimum Wages Act 1948

U.P. Minimum Wages Rules - Rule 30 Restoration:
Rule 30 Application for recall of roder- application moved much beyond the period of limitation - Sub rule (4) of Rule 30 mandatory. Application moved beyond the limitation period of 30 days cannot be entertained. Once time prescribed under law expires - Rule of procedure stands converted into a substative rule. Right vested in a person due to expiry of the period as vested right - cannot be reversed except in accordance with law. Alld. H.C. dated 14-9-2009 in WP no. 30464 of 1992 between Indian Oil Corporation Vs Assistant Labour Commissioner Kanpur. {2009(123)FLR940}

Industrial Disputes Act 1947

Seasonal Workers:

Section 25-A, 25-B(2) read with setions 2(oo)(bb) and 25-F - where a workman has been employed for a seasonal work or for tremporary period, he cannot be said to have been retrenched in view of section 2(oo)(bb). Whether the owrk in a particular industry is of a seasonal nature, the decision of the appropriate government is final. In facts of instant case, the appellant has nto brought any evidence to this effict of record. Hence, no interference is warranted with the finding that the work in appellant industry was nto of a seasonal nature. Further no interference warranted with the finding that the respondent had worked for 240 days in the preceeding calandar year, as it was for the employer, who werer in possession of all relevant records, to show to the contrary by the producing the relevant record in evidence. Lastly, the delay in making of the reference was due to the time concerned in conciliation proceedings, for which the respondents could not be blamed. Not interference is warranted in the judgment impugned. Appeal is dismissed. - S.C. dated 09-11-2009 in civil appeal no. 7463 of 2009 between Director Fisheries Terminal Division v/s Bhikubhai Meghajibhai Chavda. {2009(123)FLR (S.C.)(875)}

Change in Service Conditions:

Section 9-A, 33, 33-A and 25-F - complaint under setion 33-A - Breach of Section 33 - Daily rated labourers - engaged by employer for various activities relating to agriculture research farms, fisheries, dairies, veternary and other allied sciences - Daily rated labourers felt aggrieved by chang of their service conditions during pendency of reference without following procedure and filed separate complaint under Section 33-A alleging breach of section 33 - Through they do not hold any post but have condidions of service. - Settlement dated 22-8-80 provides conditions when they shall be treated as permanent and hours of work per day. Thus the provisions in the settlement is nothing but conditions of service of the concern workmen- NO new settlement entered not any award has replaced this settlement. Hence the settlement continues to regulate the conditions of service. Therfore, these daily rated labourers were continue to be given only one day off in a week untill the change was effected vide circular dated 3-10-91. and Industrial Court and High Court not erred in relying upon the settlement. There is change in conditions of service. S.C. dated 31-7-09 in civil appeal no. 7358 of 2000 : Gujarat Agriculture University V. All Gujarat Kamdar Karmachari Union. {2009(123)FLR377}

Delay in Reference: Dismissal without Enquiry:-

Industrial Disputes Act 1947- Section 10(1) and 11-A - Dismissal from service- for misconduct - Reference rejected - Second reference by Appropriate Government is valid - Impugned order of dismissal from service passed without enquiry - and impugned order of dismissal not duly served to petitioner - it is not a termination of his employment - Hence, his explanation for delay of 12 years in raising dispute has to be accepted - There was no charge of abusing by petitioner in charge sheet and there was no imediate report of threat to highter authorities - Impugned order set aside- Punishment of warning imposed - He shall be reinstated with 50% of back wages. Bombay High Court- Nagpur Bench dated 09-09-2009 in writ petition no. 3618 of 2008 Santosh Kumar V/s Sub Area Manager M/s Western Coalfields Ltd. {2010(124)FLR 223}

Second Reference:-

Industrial Disputes Act 1947- Section 11- Civil Procedure Code, 1908- Order XXIII Rule 1- Dispute - raised, reference made but withdrew the same- A fresh reference for adjudication of order of termination not barred in laws. Punjab and Haryana High Court dated 28-8-2009 in WP no. 11909 of 2000 Bhim Sen Sharma V/s Presiding Officer Labour Court Patiala. {2010(124)FLR281}

Standing Orders

Trasnfers:

Section 2(e), 2(g), 3, 4, 10, 12, 13 and 14, Secheme of the Act- As per Section 3 every employer of an industrial establishment as defined in section 2(e) is under obligation to submit the certifying officer the Draft Standing orders proposed to be adopted by him in his industrial establishment. Section 3(2) clearly provide that the Standing Orders are required to cover every matter set out in the schedule. Section 4 of the Act casts duty upon Certifying Officer to ensure that the proposed standing orders meet the requirement of law significantly section 3(2) grant enough freedom to every employer to depart from the model standing orders in the interest of exigencies of employment. In fact of instant case the petitioner has been transferred from Hyuderabad to Chennai. Held the order of transfer is not only in confority with the Standing orders but also according the contract of employment which clearly provided that the employee could be transferred to any of the establishments unit, and the validity of such provisions can not be questioned in petition under Article 226 of the Constitution of India, more so when the matter contains a private contract of employments. Leading Apex Court case referred . Writ petition dismissed. Tansferrability of an employee from one post to another, from one department to another or from one unit to another does not normally amount to violation of conditions of service. Transferrability of an employee is purely incidental to his employment itself. (FLR-2009-123-A.P.H.C.-880)