August 2023 | Cllra

August 2023 National News

Seema Girija Lal v. Union of India

2023 LiveLaw (SC) 545

In this order, the Supreme Court noted that the Joint Secretary in the Department of Empowerment of Persons with Disabilities in the Ministry of Social Justice and Empowerment had filed an affidavit. This affidavit contained information on the implementation of the Rights of Persons with Disabilities Act, 2016 in different States and Union Territories as on 11th May 2023.
All State Governments were ordered to comply with the 2016 Act on or before 30th September 2023. It ordered the expeditious appointment of Commissioners by the State Governments since it is clear from ss.75(1)(h) and 80(g) that they have been vested with the duty to ensure and monitor the implementation of the 2016 Act.

Bharatiya Kamgar Karmachari Mahasangh v. M/s. Jet Airways Ltd.

2023 SCC OnLine SC 872

Facts:
The appellant was a trade union which represented various drivers, operators etc. who were in the employ of the respondent who operates a commercial airline. It argued that the employees whom it represented were being treated as temporary and casual workers despite them having completed 240 days of service within the meaning of the Model Standing Order issued under the Bombay Industrial Employment (Standing Order) Rules, 1959. Negotiations were carried out between the two parties as a result of which a settlement deal was arrived at. As per this deal, the appellant gave up its claims in exchange for a package which provided employees with multiple benefits provided that they gave up the demand for permanency.
The employees were not satisfied by this due to which the matter eventually went before a Central Government Industrial Tribunal. The appellant argued that the workmen were entitled to re-employment and reinstatement. However, this claim was denied by the CGIT.
Issues:
The Court framed the following issues for its consideration:
1. Which is the appropriate authority empowered to issue the standing order(s) under the Industrial Employment (Standing Orders) Act, 1946?
2. Can a private agreement/settlement between the parties override the standing order?
Arguments of the parties:
The Court did not refer to the arguments made by the parties.
Reasoning of the Court:
While dealing with the first issue, the Court equated the “appropriate authority” that it talks about in the issue as framed by it with the “appropriate government” defined under the section 2(b) of the 1946 Act. Hence, it held that the appropriate authority for the purposes of the respondent would be the State of Maharashtra as it is governed by the 1959 Rules. It was governed by the 1959 Rules since it is not an establishment under the control of the Central Government within the meaning of section 2(b).
Coming to the second issue, it answered the question in the negative. It held that a standing order is a statutory contract under the 1946 Act which cannot be overridden by a later contract agreed to by the employer and workmen. It relied on its verdicts in the cases of Western India Match Co. v. Workmen [(1974) 3 SCC 330] and Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation [(1985) 2 SCC 35] to reach this conclusion. In both of these verdicts it had been held that standing orders issued under the 1946 Act override all pre-existing contracts which have contrary terms. Hence, the settlement between the parties could not override the Model Standing Order.
The Supreme Court overturned the verdicts of both the CGIT and the Bombay High Court since they had held that the settlement between the parties prevented the workmen from demanding permanency under the Model Standing Order.
The Court declared that the appellant was entitled to all the rights which the Model Standing Order enumerates.
Conclusion:
The appeal was allowed.

Labour Law Association v. Union of India

2023 LiveLaw (SC) 536

This is an order issued by the Supreme Court. The Court noted that the Search-cum-Selection Committee chaired by a judge of the Supreme Court had been constituted by the Ministry of Labour and Employment. Recommendations had been made by it and the respondent had carried out necessary processes for appointing the persons recommended by the Committee.

Sunita Thawani v. Union of India

WP(C) No. 64/2023

In Sunita Thawani v. Union of India [WP(C) 8288/2019] the Delhi High Court had rejected a writ petition filed by the petitioner for issuing a writ of mandamus to the Union Government for the purpose of amending the Sexual Harassment of Women at Workplace Act, 2013. The petitioner had sought the inclusion of provisions related to revictimization of women who had initiated proceedings under the Act. The Court had rejected the petition on the basis that it could not ask a legislature to create or amend laws while exercising its jurisdiction under Article 226 of the Constitution.
In this petition before the Supreme Court, the same relief was sought. The Court noted that it had dismissed on 6th January 2020 the appeal filed against the Delhi High Court’s verdict. It did not deal with the merits of the matter and instead disposed of the petition by noting that the petitioner was at liberty to address her grievances to the appropriate authorities.

Dinesh Pal Singh v. Presiding Officer

2023 SCC OnLine All 375

Facts:
This petition was filed against an order made by the Presiding Officer of the Industrial Tribunal (4) of Agra. In this petition, the petitioner alleged that he had been appointed to the post of Clerk Grade-III for short spells of time, none exceeding 240 days, for a period of four years.
Arguments of the parties:
1. Petitioner:
It was argued by counsel that the main purpose behind doing this was to ensure that the service of the petitioner did not fall within meaning of “continuous service” given in section 25B(2)(a)(ii) of the Industrial Disputes Act, 1947. The petitioner further argued that the conduct of the respondent amounted to an unfair labour practice within the meaning of section 2(ra) of the 1947 Act. More specifically, it was alleged that the conduct amounted to the conduct set out in Entry 10 of the 5th Schedule viz. to employ persons as casuals for years on end to deprive them of the status of permanent workmen.
2. Respondent:
The respondent did not provide a proper rebuttal to the arguments of the petitioner. Instead, it merely made the bald claim in a counter-affidavit that the requirements of s.25B had not been fulfilled due to which the petitioner was not entitled to any relief.
Issue:
Did the conduct of the respondent amount to the unfair labour practice set out in Entry 10 of the 5th Schedule to the 1947 Act?
Reasoning of the Court:
The Allahabad High Court held that the issue of whether an unfair labour practice had been conducted was outside the ambit of the reference made by the Assistant Labour Commissioner to the Industrial Tribunal.
Keeping this point aside, the Court considered the main issue in this case in the light of appointment letters which had been produced before it. These letters clearly mentioned that the appointment was of a temporary nature and they also stated the date on which employment would be terminated. The Court referred to the judgment of the Bombay High Court in Bajaj Auto Ltd. v. R.P. Sawant [(2000) 84 FLR 524] in which that Court had noted that employment can be of a temporary nature as well. The Allahabad High Court heavily relied on this judgment to hold that the conduct of the respondent was not hit by Entry 10 of the 5th Schedule. It held that a Court could not force employers to retain temporary employees even though the purpose for which they had been employed had been satisfied.
Conclusion:
The writ petition was dismissed.

Mohd. Abdullah v. Manager, Trumboo Cement Industry Ltd.

2023 SCC OnLine J&K 347

Facts:
Mohd. Abdullah and the three other applicants before the Court had been employed by the respondent company when they sustained injuries while carrying out blasting operations under directions given to them by the respondent. Each of them filed separate claims under section 3 of the Employees’ Compensation Act, 1923. The Commissioner Workmens’ Compensation awarded them compensation on the basis of the evidence led by them. However, they assailed the awards since the Commissioner had not awarded them interest and amount in penalty, which it was argued were mandatorily payable under section 4A(3)(a) and (b) of the 1923 Act, on the sums awarded to them. No reason had been disclosed by the Commissioner behind not granting the interest.
Appeals were also filed by the insurer.
Issues:
On the basis of the arguments advanced, the Court framed the following issues for its consideration in the appeals filed by the insurer –
1. Was the Commissioner under an obligation to first frame issues of fact and law as required under Rule 28 of the Workmen Compensation Rules, 1924 such that non-compliance with Rule 28 would lead to the proceedings before the Commissioner being vitiated?
2. Was the award passed by the Commissioner perverse, in that, it failed to consider and dispose of the legal defence raised by the insurer that the risk of employees of the employer was specifically excluded under the policy?
3. Is an MBBS qualified doctor a competent witness to depose in respect of injuries of the workmen by examining them in the Court of Commissioner for the first time?
In the appeal filed by the workmen, the only issue which the Court had to consider was as follows:
Did the Commissioner err in not granting interest and penalty amount to the workmen under the provisions of s.4A(3) of the 1923 Act?
Reasoning of the Court:
The Court first considered the appeals filed by the insurer. The Court held that the answer of the first issue depends on the facts and circumstances of each case. The proceedings would be vitiated only if a party has suffered any prejudice due to non-compliance with Rule 28. It held that the main purpose behind that Rule was to ensure that the parties would know whether they are supposed to prove by leading evidence, oral, or documentary, or both.
In the instant case, the Court held that the issues in the proceedings were well-known to both the parties due to which it noted that non-compliance with Rule 28 was not enough to vitiate the earlier proceedings.
With regards to the second question, the Court held that the award was not perverse due to non-consideration of the defence raised by the insurer since the insurer had not led any evidence in support of its claim despite that being a necessity.
Coming to the third question, the Court held that an MBBS doctor acting as a witness in the instant case was not illegal. It held that the workmen could not be expected to produce the medical officers who attended to their injuries as witnesses. Hence, the insurer could not be allowed to argue against the ability of the MBBS doctor to act as a witness. Thus, the Court dismissed the insurer’s appeals in toto.
Coming to the appeals of the workmen, the Court held that the Commissioner had been in error since he did not grant interest under s.4(3)(a) despite the pre-requisites for grant of interest had been fulfilled. It then went on to consider the issue of whether the employer or the insurer is liable to pay such interest. The Court held that a policy of insurance taken by an employer would not ipso facto extend to the payment of interest and penalty which might become due under s.4A unless the policy explicitly says so. Hence, since there was no such clause in the policy, it held that the employer would be liable to pay the interest.
The Court ordered the payment of penalty amount to the tune of 10% of the awarded amount.
Conclusion:
The appeals of the workmen were allowed.

Dr. Sohail Malik v. Union of India

2023 SCC OnLine Del 3764

Facts:
In this case, the petitioner sought to obtain a writ of certiorari against an order of the Central Administrative Tribunal. The proceedings before CAT were initiated by the petitioner due to an officer in the Ministry of Consumer and Public Distribution complaining that the petitioner, an officer of the IRS, had sexually harassed her. The petitioner had approached CAT after an Internal Complaints Committee constituted under section 9 of the Sexual Harassment of Women at Workplace Act, 2013 had issues notice to him. Before the CAT, the jurisdiction of the ICC had been challenged by the petitioner. This challenge was rejected due to which the petitioner approached the Supreme Court.
Arguments of the parties
1. Petitioner:
The petitioner sought to contend that the 2013 Act would not apply in cases where a person in one department complains against a person in another department. Sections 2, 4, 9, and 13 of the 2013 Act were relied upon to argue this. It was appointed out that the “employer” within the meaning of section 13 would be the employer of the complainant and that he would be the person to whom the report of the ICC would be sent. It was argued that section 13 would not be able to be worked properly in inter-departmental cases since the head of the complainant’s department would have no disciplinary authority over the alleged perpetrator. The petitioner contended that the only remedy available in such cases would be to file a criminal case under section 509 of the Indian Penal Code, 1860 read with section 11(1) of the 2013 Act.
2. Respondent:
The respondent’s arguments were not mentioned by the Court in its verdict.
Issue:
Are inter-departmental cases to be dealt with under the provisions of the 2013 Act?
Reasoning of the Court:
The Court took a look at the Statement of the Objects and Reasons, and the preamble of the 2013 Act. It held that it would hesitate before interpreting the 2013 Act in any manner which defeats its purposes or which is arbitrary or unjust. It held that the interpretation of the 2013 Act put forth by the appellant would have the effect of “striking at the very root of the SHW Act, and its ethos and philosophy”.
Since the proceedings had not moved beyond the issuance of notice stage in the present proceedings, the Court said that it needed to be questioned whether the ICC had the jurisdiction to issue notice under section 11(1) of the Act. It held that section 11(1) did not support the contention of the petitioner since there is nothing in the sub-section which would make one reach the conclusion that inter-departmental cases are outside the purview of an ICC.
It dismissed the argument based on section 13 by pointing out that there is nothing in section 2(g) of the 2013 Act, which provides the definition of “employer”, which would lead one to the conclusion that the definition is talking about the complainant’s employer. The Delhi High Court held that “employer” would include the alleged perpetrator’s employer in such inter-departmental cases. It held that section 19(h) of the 2013 Act would continue to be applicable in such instances as well.
Conclusion:
The writ petition was dismissed.