Important judgments under Industrial Disputes Act - 2003

REFERENCES

ISSUE RAISED /FACTS

HELD

1

STANDARD CHARTERED BANK

Vs

GOVIND PHOPALE
2003 (96) FLR 145[HC-BOM-SB]

OR

2003 (3) LLJ 1036

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ACCORDING TO THE ‘5’ BENCH SCJUDGEMENT IN 2002 (92) FLR 667[JAIPUR ZILLA CASE] INTERMINATION CASES ATTRACTINGSECTIONS 33(1) & 33(3) OF THE IDACT, DEFACTO & DEJURESEVERENCE OF THE EMPLOYEETAKES PLACE ONLY AFTER WRITTENPERMISSION IS OBTAINED AND A TERMINATION ORDER IS ISSUED

WHERE AS IN THE CASE OF TERMINATION ATTRACTING 33(2) (B),THE DEFACTO TERMINATION ISPRECEDED BY DEJURE SEPARATION

IN THE 33(1) & 33(3) CASES THE WORKMEN IS ENTITLED TO WAGESTILL FORMAL WRITTEN PERMISSIONIS OBTAINED

THE QUESTION RAISED IS WHETHERIN TERMINATION CASES UNDER33(2)(B) IS THE WORKMAN ELIGIBLEFOR SUBSISTENCE ALLOWANCEFROM THE TERMINATION DATE TILLTHE DATE OF DISPOSAL OF THE APPROVAL PETITION ?

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THE PROCEDURE PRESCRIBEDFOR PROCESSING [33(1), 33(3)AND 33(2)(B) BEING THE SAMEAND THE DEFURE TERMINATION TAKES EFFECT ONLY LATER,THE WORKMAN SHOULD BEGIVEN THE SUBSISTENCEALLOWANCE FOR THE PERIODTILL DISPOSAL OF THEAPPROVAL PETITION

2

MANAGEMENT OF KALEESWARA MILLS

Vs

PRESIDING OFFICER LABOUR COURT 2002 (95) 

FLR 822[HC-MAD-DB]

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ACCORDING TO THE STANDINGORDER ANY EMPLOYEE CONVICTEDFOR A CRIMINAL OFFENCE IS LIABLETO BE DISMISSED

EMPLOYER ACCORDINGLYDISMISSED THE WORKER [AFTERISSUE OF DUE NOTICE]

ON APPEAL THE CRIMINALCONVICTION WAS SET ASIDE AFTERA FEW YEARS

 WORKER WAS REINSTATED

IS THE WORKER ENTITLED OREMPLOYER OBLIGATED TO PAYBACK WAGES FOR PERIOD HEREMAINED OUT OF EMPLOYMENT

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QUOTING THREE APEX COURTDECISIONS IN MANAGEMENT OFRESERVE BANK OF INDI[1994(68) FLR 22(SC)]RANCHODJI CHATURJITHAKORE’S CASE [1997(91) FLR53 (SC)] AND HUKMI CHANDSCASE [1998 (79)FLOR 743 (SC)]HELD THAT THE ABSENCEFROM EMPLOYMENT WAS DUETO NO FAULT OF THEEMPLOYER AND HENCEEMPLOYER NOT BOUNDER TO PAY ANY BACK WAGES

WORKMEN WILL BE REINSTATED WITHOUT ANY BACK WAGES

3

INDIAN  TELEPHONE  INDUSTRIES LTD

Vs 

PRABHAKAR MANJARE

2002(95) FLR 1108[SC

2001 (II) LLJ 199 [SC-5 BENCH] OR 2001 (3) LLN 105 [SC-5 BENCH]

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MANAGEMENT DISMISSED A WORKMAN AND FILED AN APPROVAL PETITION UNDER SECTION 33(2)(b) AS THERE WAS AN INDUSTRIALDISPUTE PENDING

THE APPROVAL PETITION  WAS REJECTED FOR NOT COMPLYING WITH PROVISIONS OF 33(2)(B) PROPERLY

MANAGEMENT THEN RESUBMITTED AN APPLICATION AFTER RECTIFYING THE DEFECTS

CAN MANAGEMENT MAKE A SECOND APPLICATION AFTER THE FIRST ONE WAS REJECTED ?

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QUOTING THE SUPREME COURT CONSTITUENT BENCH DECISION IN JAIPUR ZILLA VIKAS BANK CASE [2002(92)FLR667(SC)]HELD THAT, ONCE THE33(2)(B) PETITION HAS BEEN DISPOSED OF AND APPROVAL REQUEST TURNED DOWN, THE MANAGEMENTS DISMISSAL ACTION BECOMES VOID AND IT CANNOT BE REOPENED AGAIN

A SECOND APPROVAL APPLICATION IS THEREFORE NOT MAINTAINABLE

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CHENNAI  PORT & DOCK WORKERS CONGRES

VS

UNION OF INDIA

2002(94) FLR 1072[HC-MAD-SB]

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EXISTING SERVICE RULES SILENTABOUT TRANSFER OF EMPLOYEES

IF EMPLOYEE IS TRANSFERRED WILLIT AMOUNT TO VIOLATION OFSECTION 9A OF THE ID ACT

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IF THE CURRENT SERVICE RULES DO NOT PROVIDE FOR PROVISIONS ON TRANSFER MANAGEMENT CAN TRANSFEREMPLOYEES ONLY AFTERGIVING NOTICE OF CHANGEUNDER SECTION 9A ANDCOMPLETE THE PROCEDUREPRESCRIBED IN ID ACT

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CAN THE LABOUR COURTENTERTAIN BELATED AND STALECLAIMS UNDER SECTION 33 (C) (2)OF THE ID ACT ?

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THERE IS NO PERIOD OF LIMITATION PRESCRIBED UNDER SECTION 33(C) OF IDACT

HOWEVER, IF LONG DELAYSARE NOT PROPERLY EXPLAINED THE LABOUR COURT CAN REJECT STALE CLAIMS

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CANARA BANK EMPLOYEES UNION

VS
CANARA BANK 2002(94) FLR 985[HC-KER-DB]

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AS PER SECTION 19(2) & 19(6) aSETTLEMENT OR AWARD CAN BETERMINATED BY THE PARTIESAFTER THE VALIDITY PERIOD IS OVER

ON ISSUE OF SUCH A TERMINATION DOES IT AMOUNT TO GOING BACK TO THE PRE-SETTLEMENT OR PREAWARD SERVICE CONDITIONS ?

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QUOTING THE EARLIER SUPREME COURT DECISION IN THE LIC CASE [AIR 1980 SC-2181] HELD ON TERMINATION OF A SETTLEMENT OR AWARD THERE WILL BE NO GOING BACK TO THE PREAWARDOR PRE-SETTLEMENT PROVISIONS

THE TERMS UNDER THE TERMINATED AWARD/ SETTLEMENT WILL CONTINUE TO BE BINDING ON THE PARTIES UNTIL THE TERMS ARE ALTERED THROUGH A FRESH SETTLEMENT OR AWARD

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UNNIKRISHNA PILLAI

VS

P.O. LABOUR COURT
2002 (95) FLR 299[HC-KER-SB]

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AS PER SECTION 25B OF ID ACT A WORKMAN RETRENCHED WOULD BEENTITLED TO RECEIVE 
UNDER SECTION 17(B) OF ID ACT EMPLOYER BOUND TO PAY LAST DRAWN WAGES AS SUBSISTENCE ALLOWANCE DURING PENDENCY OF CHALLENGE BEFORE HIGH COURT/SUPREME COURT. 

SECTION 25-H STIPULATES THATRETRENCHED WORKMEN SHOULDBE RE-ENGAGED IF OPERATIONSARE RESUMED AT ANY FUTUREDATE

ARE WORKMEN WHO WERE RETRENCHED WITHOUT COMPENSATION [THAT IS NOT SATISFYING THE 240 TEST] ENTITLED TO RE-ENGAGEMENT BENEFIT UNDER SECTION 25-B 

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THE RIGHT TO CLAIM RE-ENGAGEMENT IS NOT LIMITED TO WORKMEN WHO RECEIVE COMPENSATION

WORKMEN WHO DID NOT SATISFY SECTION 25-B REQUIREMENTS ARE ALSO ENTITLED TO RE-ENGAGEMENT

8.

RANJIT SINGH

VS
PRESIDING OFFICER

 2003(1) LLJ 1100
[HC-P&H – DB]

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WORKMEN AT HYDERABAD TRANSFERRED TO MANIPAL

HE REFUSED TO JOIN AT MANIPAL AND  RAISED A DISPUTE HAS IND. TRIBUNAL HYDERBAD

JURISDICTION TO TRY THE CASE OR SHOULD THE ID BE RAISED AT MANIPAL ?

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ONCE THERE IS A VALID TRANSFER THE JURISDICTION FOR RISING INDUSTRIAL DISPUTE WILL BE THE PLACEOF NEW POSTING

THE FACT THAT THE EMPLOYEE IS ILLEGALLY KEEPING AWAY FROM THE PLACE OF POSTING WILL NOT ALTER THIS POSITION

JURISDICTION OF HYDERABAD IS THEREFORE RULED OUT 

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suraj palsing

vs

labour court  
2002(95) flr 521 [hc-del-sb]
2002(iii) llj 885

state of rajasthan
 
vs

mahendra joshi
2002 (95) flr 595 [hc-raj-db]

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b

SECTIONS 25-B AND 25-F OF ID ACT STIPULATE THE QUALIFYING CONDITIONS FOR RECEIVING RETRENCHMENT COMPENSATION

25B(2)(A) STIPULATES THAT TO QUALIFY A WORKMAN WHO IS NOTIN REGULASR SERVICE MUST HAVE ‘ACTUALLY WORKED ‘FOR ATLEAST 240 DAYS DURING THE 12 MONTHS PRECEDING THE DATE OFRETREBCGNEBT


TWO QUESTIONS WERE RAISED 

WILL ‘ACTUALLY WORKED’INCLUDE NON WORKING DAYS FOR WHICH WORKER RECEIVED WAGES ?

IF WORKMAN DID NOT SATISFY 240 DAYS IN THE IMMEDIATE [PREVIOUS 12 MONTHS, BUT HAD SATISFIED THE 240 TEST FOR EARLIER YEARS WOULD HE BE ENTITLED FOR RETRENCHMENT COMPENSATION ?

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ACTULLY WORKED SHOULD BE GIVEN THE MARKED DAYS FOR WHICH HE RECEIVFGED PAYMENT

EVEN IF 240 DAYS TEST NOT SATISFIED IN THE IMMEDIATE PREVIOUS 12 MONTHS IF IN ANY OF HIS EARLIER YEARS,M HE HAS SATISFIED THE TEST, HE CANNOT BE DENIEDRETRENCHMENTCOMPENSATION


NOTE : A WORKING ONREGULAR EMPLOYMENT NEED NOT GO THROUGH THIS 240 DAY TEST TO QUALIFY

10

BANK OF BARODA

VS

G SRIRAM
2003 (I) LLJ 905[HC-AP-DB]

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WORKMAN CHALLENGED HISDISMISSAL UNDER SECTION 11A OFID ACT

TRIBUNAL AFTER HOLDINGDOMESTIC ENQUIRY VALID PERMITTED THE WORKMAN TO LEAD ADDITIONAL EVIDENCE

IS THIS ACTION OF TRIBUNAL VALID 

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ONCE THE TRIBUNAL FINDS THE DOMESTIC ENQUIRY IS IN ORDER, THE COURT HAS TO DISPOSE OF THE CASE ON THE BASIS OF THE EVIDENCE ALREADY EXISTING

THE TRIBUNAL CANNOT PERMIT FRESH EVIDENCE TO BE TAKEN

SEE THE LEADING CASE OF THE SUPREME COURT ON POWERS OF TRIBUNALS UNDER SECTION 11A IN NEETA KAPLISH’S CASEIN 1999 (I) LLJ 275

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RANJIT SINGH

VS

PRESIDING OFFICER

2003(1) LLJ 1100[HC-P&H-DB]

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MANAGEMENT DECIDED TOTERMINATE UNION LEADERS FORINVESTIGATING ILLEGAL STRIKE

SINCE A DISPUTE WAS PENDINGFILED A PERMISSION APPLICATIONBEFORE PRESIDING OFFICER TOCOMPLY WITH PROVISIONS OFSECTION 33(1)

WORKER WAS PLACED UNDER SUSPENSION BUT NOT PAID ANY SUBSISTENCE ALLOWANCE

IS THE WORKMAN ELIGIBLE FOR SUBSISTENCE ALLOWANCE?

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ONLY ON PERMISSION BEINGGRANTED DOES THE JURALRELATIONSHIP WITHEMPLOYER COME TO AN END

CITING SEVERAL SUPREMECOURT DECISIONS, HELD WORKMAN ENTITLED TO SUBSISTENCE ALLOWANCE DURING PERIOD OF SUSPENSION THAT IS TILL THE PETITION UNDER 33(1) IS DISPOSED OFF BY THE TRIBUNAL

12

PRAMOD JHA

VS

STATE OF BIHAR
2003(2) LLJ 159 [SC]

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AS PER SECTION 25 (F)RETRENCHMENT WOULD BE ILLEGAL IF NOTICE OF RETRENCHMENTPAYMENT OF COMPENSATION ANDINTIMATION TO GOVERNMENT IS NOTALL DONE TOGETHER

THE WORKMAN CHALLENGED HISRETRENCHMENT ON THE GROUNDTHAT THE PAYMENT WAS NOT MADEAT THE TIME OF NOTICE

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SECTION 25(E) DOES NOT STIPULATE THAT PAYMENT HAS TO BE MADE AT THE TIME OF GIVING NOTICE

THE SECTION REQUIRES ONLY PAYMENT TO BE MADE AT TIME OF ACTUAL RETRENCHMENT

 IN THIS CASE PAYMENT WAS MADE AT TIME OF RETRENCHMENT

  ACTION OF MANAGEMENT UPHELD