Maternity Benefit Act 1961

Section 5(2) -Maternity benefits -maternity leave - denied to petitioner, a casual labourer - not allowed her to join service - claim of petitioner for reinstatement rejected by respondent - on ground that beak in service was more than 90 days - she was unjustly denied maternity leave and employment - action of respondents are totally illegal and violate Art. 14 and 21 of the Constitution fo India - Petitioner was appointed on 30-05-1988, as such as per GOM no. 19, she is also entitled and justified in seeking regularisation, as all other were regularised - hence respondents are directed to reinstate the petitioner in service and regularise her services. Madras High Court dated 20-12-2011 in WP no. 3603 of 2007 between L. Kannaki and Secretary to Government, Animal Husbandry and Fisheries Department, Chennai and Others. [2012(133) FLR 48]

INDUSTRIAL DISPUTES ACT 1947 - Sec. 17B

COMPLIANCE OF SEC 17B

Sec 17B - Reinstatement with back wages till 5-5-92 - Leagality of - Award challenged, makes obligatory for the employer to pay the workman during the pendency of proceedings in the High Court or Supreme Court full wages last drawn by the workman - scope of section 17-B of the Act - Very clear- Leaves no discretion with the superior Court to give relief to the successful workman of not to give - Relief can be denied only if the employer shows that the workman was gainfully employed in some industrial establishment - Management directed to pay the workman his last drawn wages or the minimum wages fixed from time to time, whichever is higher from the date of passing the impugned award till pendency of the writ petition subject to undertaking. Delhi High Court dated 19-09-2012  in CM no. 17172 of 2006 : Mysore Lamps Works Ltd V/s Girish Kumar Jain [2012(135) FLR 1011]

INTERPRETATION OF STATUTES:

Rule of contetemporanea expositio- Established rule of interpretation - Words used in a statutory provisions - Must be understood in the same way in which they are usually understood in ordinary parlance with respect to area in which  said law is in force. Proviso provides exception - Purpose is to exclude something which otherwise would fall within the general language of the main enactment. Hardships of an individual - cannot be used as the basis to alter the meaning of the language employed by the legislature. Addition of subtraction of words - Not permissible - Court cannot add words to a statute or read words into it which are not part of it - Not permissible for the Court to twist the clear language of the enactment in order to avoid any real or imaginary hardships. Civil Appeal No. 2133-34 of 2004 Rohit Kumar and others V/s Om Prakash Sharma and Others Supreme Court Dated 06-11-2012 [2013(136)FLR 92]

Minimum Wages Act 1948

Minimum Wages Act 1948 - Evidence Act not applicable:Evidence Act 1872 - admittedly the provisions of Evidence Act not applicable - For proceedings before Prescribed Authority under the Act 1948. - Fact that employment of workmen was part time employment not proved by employer - Findings recorded in favour of Workmen therefore cannot be interefered.
Minimum Wages Act 1948 - Applicability on Hospitals:
Minimum Wages Act 1948 - Section 1, 2(e) and 3 -Notification dated 19-12-1993, 02-04-1992, 12-10-1992 - Applicability of Act - In view of subsequent notification dated 12-10-1992, Hospitals are coveredby the 1948 Act - Petitioner Hospital cannot be absolved of it's applicability under Provisions of Act.
[2011 (130) FLR 874] Allahabad High Court. Civil Misc Writ Peitition no. 23970 of 2008 dated 19 May 2011, Public Welfare Hospital, Varanasi v/s State of U.P. through Chief Secretary.

Workmen's Compensation Act 1923

Loss of One eye of Driver- 100% Claim

Workmen's Compensation Act 1923- Section 2(1)(b), Schedule 1, Item 4 - Compensation - Loss of Vision - of Driver of Transport Vehicle - In one eye - Should be considered and treated as permanent total disablement - Loss of earning capacity is 100%. [2011 (130) FLR 113] Keral High Court in MFA no. 60 of 2006 dated 08-03-2011 : New India Assurance Co. Ltd. V/s Santhosh.

Construction Workers Welfare Cess Act 1996

RECOVERY OF CESS - ALTERNATIVE REMEDY

Construction Workers's Welfare Cess ACt 1996 - Sections 11, 9, and 5, Constiution of Inda, 1950 - Art 226 - Alternative remedy - Petitioners is impugning the imposition of cess under the Act and consequent recovery proceedings on various grounds. - Thus the petitioner has an alternative remedy of filing appeal before appellate authrity- Hence, the petition is dismissed on ground of availability of alternative remedy. [2011(130)FLR 12] Writ petition no. 22161 of 2011 between Tanks and Tube Wells Class A Category Contractor v/s Collector/District Magistrate, Allahabad in Hon'ble High Court of Judicature at Allahabad on 18-04-2011

Minimum Wages in Uttar Pradesh

Minimum Wages in 58 Employments
Minimum Wages for worker in the state of Uttar Pradesh with effect from 01 April 2011 to 30 September 2011 are as following. for unskilled workers basic wages are Rs. 2600.00, for semi skilled workers basic wages are 2964.00 and for skilled workers basic wages are 3290.00 per month. Variable dearness allowance for unskilled Rs. 1563.98, for semi skilled workers - 1782.94 and for skilled workers - 1979.04. In this way total monthly wages for unskilled worker are Rs. 4163.98, for semi skilled workers are 4746.94 and for skilled workers are 5269.04. Thus one days wages for unskilled workers are 160.15, for semi skilled workers are 182.57 and for skilled workers are 202.66.

Minimum Wages Act, 1948

Minimum Wages Act 1948 - Section 12- Provisions of Act - High Court or the Company Judge - Cannot be expected to pass any orders - So as to flout the provisions of Act. [2011(128)FLR1096] Patna High Court dated 07-04-2010 in Company Appeal No. 1 of 2010 Between Bikramaditya Mishra and Official Liquidator, Rohtas.

Departmental Enquiry

Departmental Enquiry can not be held to unfair on trivial points. It can be held unfair only if there is substantial denial of opportunity to workman- And the workman shows that denial has resulted in prejudice.

[2011(129)FLR594] Allahabad High Court dated 4-3-2011 in Civil Misc. writ petition no. 26807 of 1998 between State Bank of Patiala and Union of India.

Payment of Gratuity Act 1972 - further claim as per increased limit

Payment of Gratuity Act 1972- Section 1(3) 3, 4(3), 5, and 7(4) (a), (b), (c), (d), as amended - Constitution of India 1950 Article 226 - claim of maximum gratuity- gratuity of Rs. 3.5 lacs already received- claims further amount of Rs. 6.5 lakhs- Controlling authority has jurisdiction to examine it- Since an alternative remedy is available to the petitioner- High Court under Article 226 will not interfere- Petitioner can approach the appropriate authority- Petition is dismissed.

Admittedly, the claim of the petitioner is under the Statute. The controlling authority which has been appointed in terms of section 3 of the Act, is responsible for adminstration of the Act. Significantly, in addition to the provision of section 4(3), Section 5 of the Actg also contemplates the right of employees to receive better terms of gratuity from an amployer. I, therefore, do not see how the controlling authority appointed under the Payment of Gratuity Act 1972 would lack jurisdiction to examine th dispute. The petitioner has shown me no precedent or authority that might persuade me to hold otherwise.

[2011(129)FLR952] Delhi High Court in Writ petition (Civil) no. 7146 of 2010 date 16-3-2011 in P.S. Gupta V/s Union of India.

Employees' Comensation Act 1923

Death due to quarrel with co- employee:-

Workmen's Compensation Act 1923- Section 3 and 4(1)(c) - Death of diesel assistant - Diesel assistant employed in Northern Raiway had quarrel with another railway employee while on duty- Quarrel resulted in death of diesel assistant - Grant of Compensation to legal heirs- Claim by heirs was maintainable. The submission made by the learned counsel for appelant that the accident in question does not come within the ambit and scope of the provisions provided under Section 3 of the Act, as such the claim petition filed by the claimant is not maintainable, is totally incorrect, wrong submission and rejected. The order passed by WC Commisioner/Assistant Labour Commissioner Lucknow on 07-06-2002 in Case no. 19/1998 upheld. F.A. No. 537 of 2002 : Union of India through General manager Northern Railway and another V/s Ifzal Hussain and another decided on 25-08-2010 by Allahabad High Court. [2011(128)FLR137]

Payment of Gratuity Act 1972 - Forfeiture of Gratuity

Quarter not vacated- can not be forfeited:

Payment of Gratuity Act 1972 - Section 4(6) - Gratuity- Withholding of- Because company quarter not vacated- recovery notice- once controlling authotity passed the order under the Act- It is bounden duty to recover the said amount for which recovery notice are issued - Hence impugned recovery notices cannt be illegal.- amount of gratuity can be forfeited only as provided under Section 4(6) of Act. But the petitioner as never challanged the original order - Hence all petitioner fail and deserve to be dismissed. Special Civil Appeal No. 17105 and 17111 of 2003 : Jehangir Textile Mills V/s Sahebsingh Chotesingh and another, decided on 05-10-2010 by Gujarat High Court. [2011 (128) FLR 180]

Can be forfeited on Dismissal:

Payment of Gratuity Act 1972 Section 4(6) and Rule 18 of Bank PF Rules - Forfeiture of Gratuity- Petitioner, an employee of bank- Dismissed from service- For misconduct of causing loss to bank- In view of Section 4(6) of Act and rule 18 of the Rules, bank has rightly forfeited the amount of gratuity adn deducted the contribution of employer. OOCJ WP no. 636 of 2002 : Ramchandra S. Joshi V/s Bank of Baroda, Decided on 05-04-2010 by Bombay High Court.

Industrial disputes Act 1947 - Delay

Industrial Disputes Act 1947 - Section 25F to 25H and 10- reference expression "at any time" in the context it is used - Postulates tgaht reference can only be made if an industrial dispute existgs or is apprehended. Findings recorded by the Labour Court that the appellant completed 240 days in 12 preceding months and termination of his services without complying with provisins of Section 25F - Termination illegal, null and void. But it rejected the claim of the workman on ground of delay in making the reference. No limitation prescribed for making reference under Secion 10- reference sought for by the workman.- Services of the workman terminated on 26-5-1992 and reference made by the Government on 22-11-1999. Once it is found that industrial dispute exists-Incumbent on part of the Government to make reference. SLP(C) no. 4137 of 2007 : Kuldeep Singh V/s G.M Instrument Design Development and Facilities Centre decided on 3-12-2010 by Supreme Court [2011(128)FLR121]

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}