abandonment of service

7/31/2019 Abandonment of Service

1/42

17/12 ABANDONMENT OF SERVICE

ww.rushabhinfosoft.com/webpages/Statutory Laws/SHTML/SEC-1-27.htm

ABANDONMENT OF SERVICE

Proof of abandonment of service Abandonment of service is question of intention, Intention of

abandonment has to be gathered from conduct of employee Documents produced clearly show

that employee had exhibited intention not to resume duty despite sufficient opportunity given

to him Employer has proved voluntary abandonment of service by referring to voluminous

records No relief can be claimed by employee.

Held: Under common law an inference that an employee has abandoned or relinquished his services i

not easily drawn unless the length of absence and from other surrounding circumstances an inference to

that effect can be legitimately drawn and it can be assumed that the employee intended to abandon his

service. Abandonment or relinquishment of service is always a question of intention and normally such an

intention cannot be attributed to an employee without adequate evidence under law. In the present case

the intention of the petitioner to abandon his services has been clearly proved by voluminous documents

produced by the Spices Board. The Apex Court has held that whether there has been a voluntary

abandonment of service or not is a question of fact which has to be determined in the light of the

surrounding circumstances of each case. In the present case the abandonment of service is total andcomplete. The employee has given up his duties and has exhibited an intention not to resume the same, in

spite of sufficient opportunities given to him by the employer. Therefore, it can be easily construed tha

there has been voluntary abandonment of service. (Para 10) Sankaranarayanan, P.L, Ernakulain v

Spices Board, Kochi. [1999]

Settlement Bi partite settlement (dated September 17, 1984) governing service conditions o

Bank employees Clause XVI Absence of workman from duty for more than 90 days Duty of

employer to serve notice to report for duty within 30 days On his failure to comply, he will be

deemed to have abandoned service Essence of clause is absence of intention of workman to

join duty.

This writ petition by the management of the State Bank of India challenged an award of the Industria

Tribunal held by which the Tribunal held refusal by the Bank to give employment to the respondent

workman, a clerk in the Bank at its Phulbani Branch, on account of his absence from duty beyond 90

days amounted to illegal termination of his service and therefore directed his reinstatement with ful

backwages. The High Court upheld the Tribunal's impugned award as regards reinstatement but allowed

in part the writ petition as regards payment of backwages.

Held: The High Court observed that the essence of clause XVI of the Bi partite settlement, on which thebank purported to take its impugned action, was the absence of intention of the workman to join duty

(Para 5)

The High Court found that the conclusion of the Tribunal that the workman had no intention o

abandoning his services was essentially factual. It could not be treated as baseless. This finding of fac

was not to be interfered within a writ petition. (Para 6)

As regards backwages the High Court observed the dispute was raised after substantial length of time

Hence backwages were held payable only from January 1, 1990 and not from July 27, 1985 as directed


2/42



by the Tribunal. (Para 7) Management, State Bank of India, Phulbani Branch v. Bipin Bihari Patnaik

[1999]

Voluntary abandonment of service Petitioner not shown to have tendered resignation His leave

applications not considered Nor medical certificates submitted by him No decision thereon was

taken by competent officer Held impugned order of termination not bona fide State Bank o

India Officers (Determination of Terms and Conditions of Service) Order, 1979 Rules 20 and

92.

Saibabu S. v. State Bank of India. [1999]

When worker resorts to strike, he does not abandon his job I.D. Act has not provided period of

illegal strike would be treated as period of unauthorised absence or relationship of employer

employee would cease Industrial Disputes Act, 1947 Sections 22 and 26.

U.P. Rajya Setu Nigam Sanyukt Karmachari Sangh v. U.P. State Bridge Corporation, Lucknow

[1999]

ABSENCE FROM DUTY

Unauthorised absence Bank employee absenting Bipartite settlement Clause 17(a) is an

enabling clause to send notice to employee if he remains absent beyond 90 days Not to send

this notice is risky for Bank.

Petitioner had joined the Syndicate Bank as attendee in 1978, and in 1984 he was promoted as clerk

He absented from November 29, 1996. Bank issued notice to him on March 13, 1997 to join duty

Further notice was sent on March 25, 1997 by Regd. Post. Notices came back with postal endorsemen"addressee left, returned to sender". Then Dy. G.M. passed order on June 24, 1997 declaring that the

employee is deemed to have voluntarily retired from Bank Services from May 16, 1997, and further

declaring that the period of unauthorised absence of the petitioner should not count for service for

purposes of gratuity and pension. Hence this Writ Petition.

Held: Clause 17(a) of the Bipartite settlement mandates that before management declares that the

employee has voluntarily abandoned the job by virtue of the fact that he absented himself unauthorisedly

for a period more than 90 days, the management is required to give notice to the employee offering him

an opportunity to explain under what circumstances he absented himself unauthorisedly. In the instan

case no such notice was served. (Para 3) Ramachandra Alse S. v. Dy. G.M., Syndicate Bank

Hyderabad. [1999]

Status and treatment of officer under suspension Non payment of subsistence allowance during

suspension does not entitle delinquent officer to be absent from duty Punjab Police Rules, 1934

Rule 16.21.

State of Punjab v. Dharam Singh. [1999]


3/42



ABSORPTION IN SERVICE

Casual Employees Technical Mate engaged by Railways on casual basis continued in service

for number of years Claim made by such Technical Mate for absorption in Group "C" rejected

by Railways Technical Mate approaching Central Administrative Tribunal more than once

Casual Employees could be given designation Distinction exists between Casual Employees

engaged in different categories Railways directed to absorb Technical Mate as Skilled Artisan

in Grade III in appropriate Scale inasmuch as Technical Mate has approached Tribunal onnumber of occasions and case is extra ordinary case.

A Technical Mate was engaged on daily wages w.e.f. August 23, 1976. She was declared to have

attained temporary status in 1981. She made a representation to confer the temporary status in Group

"C". The Chief Engineer took the view that the appellant was not entitled to be employed in Group "C"

She filed an application before the Central Administrative Tribunal seeking relief of absorption in Group

"C". The Tribunal set aside the action of the Chief Engineer and remitted the matter to the concerned

authorities. Once again the Chief Engineer decided against her absorption in Group "C". Hence she

approached the Central Administrative Tribunal. The Tribunal directed the Chairman of the Railway

Board to examine this matter and give appropriate relief. the Chairman of the Railway Board took the

view that the employee is only a casual employee and a casual employee cannot be differentiated from

another casual employee and the designation of post cannot be attached to such an employee. Therefore

the Tribunal, found helplessness to give relief to the appellant and dismissed the application filed by the

casual employee. Hence the Civil Appeal by Special Leave.

Held: The Communication of the Railway Board No. P(S)/443/I/Misc/MP/MAS/Vo. X clearly indicate

the manner in which a person whose services have been engaged as a Technical Mate on casual basis

has to be treated. If this is the mode of providing an employment, then it is not understandable as to how

the Chairman of the Railway Board could not apply the same to the appellant and give appropriate reliefConsidering the long period of service the appellant had put in and the qualification possessed by her

namely, a diploma in technical subjects, it would certainly entitle her to be absorbed as a skilled Artisan

in Grade III in Scale 950 1500 against post available in respect of direct recruitment quota. If this aspect

had been borne in mind by the Chairman of the Railway Board, he would not have rejected the case o

the appellant. (Para 2)

The view taken by the Chairman of the Railway Board that there cannot be any designation assigned to a

casual employee baffles all logic because there can be engagement of a peon on casual basis and there

can be engagement of a clerk on casual basis and it cannot be said that both are casual employees and

therefore, there cannot be any distinction between a peon and a clerk as they are engaged on casua

basis. (Para 3)

Considering the number of occasions the appellant had approached the Tribunal and the authorities fo

relief, it is an extraordinary case where the respondents should be directed to absorb the appellant as a

skilled Artisan in Grade III in appropriate scale as indicated in the communication No

P(S)/441/I/MISC/MP/MAS/Vo. X of the Railway Board and the benefit thereof should be given to the

appellant. (Para 4) Chandra V.M. v. Union of India [1999]


4/42



Absorption of surplus staff of autonomous body by State Government Whether entities staff to

demand continuity of service In absence of specific provision No.

The Appellant was a Forester in the Bihar State Forest Development Corporation, which was an

autonomous body. Since the BSFDC decided to close down certain projects, certain number of staf

including the Appellant became surplus. The State Government decided to absorb the surplus staff in the

State Trading Wing of the Forest Department with effect from March 2, 1982. The Appellan

approached the High Court claiming continuity of his service from the day he had joined the BSFDCand his petition before the High Court was dismissed. Hence the appeal in the Supreme Cour

contending that he was only transferred from BSFDC to STWFD and therefore entitled to continuity o

his service with consequential benefits.

Held: In the absence of any provision, the appointment of the Appellant in the State Cadre had to be

considered as appointment from the date when it takes effect. The judgment of the High Court that the

service of the Appellant will count from the date of 'his appointment in the State Trading Wing of the

Forest Department of the State of Bihar and his earlier service with the Corporation will not be counted

for the purposes of seniority and other benefits was confirmed by the Supreme Court. (Para 5)

Yogendra Prasad Mandal v. State of Bihar. [1999]

Notification by Government of India prohibiting employment of contract labour for sweeping

cleaning etc. of buildings owned by establishments in respect whereof Central Government was

appropriate Government Respondent Corporation held bound by notification Employees for

such work through contractor directed to be absorbed by Corporation as its regular and

permanent employees Contract Labour (Regulation and Abolition) Act, 1970 Section 10.

Mumbai Shramik Sangh v. Bharat Petroleum Corporation Ltd. [1999]

Contract Labour (Regulation & Abolition) Act, 1970 Section 10 G.O. abolishes certain

categories of contract labour in APSEB Only employees working on day of abolition entitled to

be absorbed Petitioners not in rolls on said date not entitled to claim regularisation.

Chandra Mouli Reddy v. Member Secretary, APSEB. [1999]

Notification under Section of 10(l) of Contract Labour Act No provision in the Act for

absorption of employees whose contract of employment stands abolished under notification

Principal employer not under obligation to absorb such employee.

Madras Aluminium Co., Salem v. Regional Labour Commissioner. [1999]

Casual Labour Absorption of Ex casual labourer regardless of number of working days could

be absorbed if he was graduate Scheme for absorbing ex casual labourers being benevolent

one has to be interpreted in manner which furthers its objects.

Pippalla Surya Bhagavan v. MemberSecretary, A.P.S.EB. [1999]


5/42



Person appointed through back door cannot claim permanency in service Absorption in

permanent service on ground of social justice, not sustainable.

Calcutta Tramway Co. Ltd. (1978) v. Ramesh. [1999]

No claim for absorption in regular establishment can be made till Notification is published

prohibiting engagement of Vulcanisers as contract labour Leave given to Vulcanisers; to move

appropriate Government for prohibition of engagement of Vulcanisers as contract labour inHalide Dock Complex, Calcutta Port Trust Order of status quo issued subject to certain

conditions.

Sheikh Jahangir Ali v. Calcutta Port Trust. [1999]

Validity of medical certificate issued by specialists in field in face of disqualification on medica

ground for absorption of workmen Certificates valid.

Held: Certificates issued by District Medical Officer, Skin Specialist in the Government Headquarters

Hospital, District Leprosy Officer, etc. should be accepted as valid certificates. (Para 12) Workman

represented by the General Secretary, India Cements Employees Union, Sankari West v. Genera

Manager, India Cements Ltd., Sankari West. [1999]

Absorption Whether workman medically fit to do the work Workman is entitled to produce

medical certificate issued by Doctors other than Company Doctor.

Held: Since the settlement contemplates a right of appeal against the findings of company Doctor to the

District Medical Officer, the certificate issued by the company Doctor is not final. Therefore the

workman is entitled to produce the certificate issued by the District Medical Officer. (Para 12)Workman, represented by the General Secretary, India Cements Employees Union, Sankari West v

General Manager, India Cements Ltd., Sankari West. [1999]

Absorption of surplus staff of autonomous body by State Government Whether entitles staff to

demand continuity of service In absence of specific provision No.

Yogendra Prasad Mandal v. State of Bihar. [1999]

ACCIDENTSEE UNDER THE HEADING "WORKMEN'S COMPENSATON ACT, 1923".

ADMINISTRATIVE LAW

Judicial Review Scope and Meaning of Judicial Review is not akin to appeal It is review o

manner in which decision was arrived at Courts while exercising judicial review must remain

conscious of fact that Court cannot substitute its judgment for that of administrative authority

(Para 17)


6/42



Apparel Export Promotion Council v. A.K. Chopra. [1999]

ADMINISTRATIVE TRIBUNALS ACT, 1985

Section 3(q) Department of Social Forestry, a scheduled employment of workers in Plantations

Farms and Schemes of such department, engaged on daily wage basis Grievance of reduction

in their wages Writ petition for relief, held not maintainable Minimum Wages Act, 1948.

The petitioner union sought relief on behalf of daily rated workers in the Plantation Farms and Schemes

of the Social Forestry Department of the Government of Maharashtra, against a reduction of their wages

claiming that social forestry was a scheduled Employment under the Minimum Wages Act, 1948. The

High Court held the petition not tenable.

Held: The High Court observed that disputes regarding daily rated casual labourers fell within the ambi

of service matters as defined under Section 3(q) of the Administrative Tribunals Act, 1985. (Para 4)

The present (writ) petition was therefore held not tenable. The High Court consequently directed transfe

of the petition to the Maharashtra Administrative Tribunal. (Para 6) Marathwade Sarvashramik

Sangathan v State of Maharashtra [1999]

Section 14(l)(a) jurisdiction of CAT Appellant selected by Posts & Telegraphs Department for

post of clerk Due to want of vacancy could not be offered appointment Appellant accepted

offer of appointment as clerk in Army Postal Service on deputation Also accepted that he

would revert to P&T Dept. on release from Army Postal Service Facts demonstrate that

appellant had been in P&T Dept. working on deputation in Indian Army Postal Service Centra

Administrative Tribunal has jurisdiction to entertain original application filed by appellant CATerroneously accepted claim of appellant that he was army personnel Case remanded to CAT to

decide original application of appellant. (Para 8)

Major M. R. Penghal v. Union of India. [1999]

Sections 14(l) & 15(l) Relief granted by lower Court found to be illegal Yet not disturbed on

facts and circumstances of case.

Union of India v. Kulamoni Mohanty. [1999]

Section 28 Exclusion of jurisdiction of High Court in respect of orders passed by

Administrative Tribunal, unconstitutional (Constitution of India, 1950 Articles 323 A (2)(d).

Edwin v. Director General, All India Radio [1999]

ADVERSE REMARKS

Procedure to be followed before communication of adverse remarks to employee Application o


7/42



Section 114 (c) of Indian Evidence Act to service law Presumptions applicable judicial Officers

are on duty all the 24 hours.

The Petitioner has gone to the Court with a prayer to quash adverse entry in his service records. The

adverse entry was "deliberately avoided to attend the official meeting with Hon'ble Acting Chief Justice

on October 23, 1993 at the Irrigation Inspection House, during His Lordship's visit to Mirzapure. He i

guilty of disobedience. He is also impertinent and arrogant in his behavior". The case of the Petitione

was that on October 23, 1993 was a holiday and he was on fast and performing Havan while celebratingRam Navami. Therefore he could not go to meet His Lordship.

The record placed before the Court contained more information about the behaviour of the Petitioner. In

1976 77 there were adverse remarks against him such as "It is distressing to note that he lacks courtesy

and good manners. He is not amenable to the advice of District Judge". Again in 1977 78 "his

knowledge of law is poor and appreciation of evidence unsatisfactory. His judgments are not sound and

are sometimes vitiated even by misreading of documents" etc. In 1979 80 also there were adverse

remarks.

Held: What the Rule prescribes is that before the adverse remarks are issued, it would be placed before

the Chief Justice and in this case it was done, and nowhere in the Writ Petition has the Petitioner made

any statement that the adverse remarks were not placed before the Chief Justice prior to its issuance

(Para 7.2)

Even though the provisions of the Indian Evidence Act are not in terms applicable to the proceedings

under Article 226 of the Constitution yet the principles engrafted under Section 114 (c) of the said Ac

concerning presumptions of correctness and regularity in regard to the official and judicial acts would be

applicable to the proceedings. The act in question was done by the High Court on its administrative side

Thus, this presumption will be of the highest degree and the onus will be very heavy on a person whochallenges this presumption which has not been discharged by the Petitioner. Adverse remarks were

communicated to the Petitioner after the endorsement by the Chief Justice. (Para 7.3)

The Petitioner has taken different stands at different times, such as that he was not aware of the fact that

judicial officers were required to meet the Chief Justice at the Irrigation Inspection House, he was no

informed that any official meeting has been fixed, while the circular had mentioned about the visit clearly.

The contentions of the Petitioner were that the visit was absolutely private and not an official one

Petitioner was not provided with the copy of the report of the District Judge on the basis of which

adverse remarks were recorded; October 23, 1993 being Ram Navami day was declared a holiday andthe Petitioner was on fast and performing his pooja; the Chief Justice has not concurred with the issuance

of adverse remarks; the High Court while dealing with administrative side with the member of the

subordinate judiciary was required to act fairly and non arbitrarily and thus the adverse remark

recorded against him and the resolution of the administrative department are liable to be quashed.

If he was really fasting, that fact should have been brought to the notice of the District Judge. The D.B

refused to believe this defence. (Para 8. 1)


8/42



On the plea that it was a holiday the Court said that the Petitioner being judicial officer will be deemed to

be on duty 24 hours. (Para 8.3)

The D.B. could not find any ground to entertain his alternative plea of mercy and it was rejected. (Para

11) Singh, N.B., Additional District & Sessions Judge, Budaun v. Laksluni Bihari, District

Judge. [1999]

AGREEMENT

Trade Unions cannot dictate employer whom they should employ If there was any agreement

giving them right so to dictate, it was for them to raise industrial dispute.

Peethainbaran v. Ramachandran. [1999]

ALLAHABAD HIGH COURT RULES

Chapter VIII Rule 5 Right of appeal, a creature of statute No inherent right to prefer appealunless it is conferred on litigant by law If appeal sought relief of implementation of award

coming within prohibition of Rule 5 of High Court Rules, appeal is not maintainable U.P

Industrial Disputes Act, 1947 Sections 14 A and 16.

Rain Kripal Singhv. U.P. State Road Transport Corporation. [1999]

ALLOWANCES

House Rent Allowance Entitlement of employee living in his own house Admissible only i

gross rental value assessed by Municipal Authorities for municipal purposes exceeds 10% o

employee's pay Rental value for H.R.A. cannot be different from rental value of house as

assessed for municipal purposes Employee cannot draw H.R.A. based on certificates obtained

from municipal officials showing different rental value.

Director General, Indian Council of Medical Research v. Dr. Anil Kumar Ghosh. [1999]

House Rent Allowance Entitlement of employee living in his own house Admissible only i

gross rental value assessed by Municipal authorities for municipal purposes exceeds 10% o

employee's pay Rental value for HRA cannot be different from rental value of house as

assessed for municipal purposes Employee cannot draw HRA based on certificates obtained

from municipal officials showing different rental value. (Para 16)

Director General, Indian Council of Medical Research v. Dr. Anil Kumar Ghosh. [1999]

Subsistence Allowance Interim relief Nonpayment of subsistence allowance Not a ground that

will vitiate award.


9/42



See also under the heading 'SUSPENSION'. Venugopal V. v. Management of Reed Relays &

Electronics Ltd., Madras. [1999]

Dismissal of employee without enquiry Subsistence allowance during pendency proceeding in

Labour Court Should be paid Bombay Industrial Relations Act, 1946 Section 119 D.

Bharat Co operative Bank Ltd. v. K.L. Baria, Judge, Labour Court. [1999]

ALTERNATIVE REMEDY

SEE UNDER THE HEADING "CONSTITUTION OF INDIA" ARTICLE 226.

AMENITY

Supply of uniforms and shoes It is an amenity Employer may provide it, discontinue it or no

provide at all Application under Section 15(2) to be filed within 12 months Payment of Wages

Act, 1936 Sections 15(2) and 15(3).

Gurbux Singh v. Executive Engineer, Ropar Division, Sirhind Canal, Ropar. [1999]

ANDAMAN AND NICOBAR (PWD) GROUP A AND

GROUP B POSTS RECRUITMENT RULES, 1980

Determination of seniority of employees whether service rendered on ad hoc basis prior to

regularisation can be taken into account for determination of seniority in a particular rank Ad

hoc appointee's service prior to regularisation is not counted for the purpose of seniority.

Singh P.K. v. Bool Chand Chablani. [1999]

ANDHRA BANK (OFFICERS) SERVICE REGULATIONS

Regulation 8 Notional pay has to be fixed and P.F. and gratuity to be calculated on that basis

Arrears can be claimed, under Regulation 8 as of right and it is not paid ex gratia.

Veerabhadra Rao K. Ch. v. Government of India, Ministry of Finance, New Delhi. [1999]

ANDHRA PRADESH COOPERATIVE SOCIETIES ACT,

1964

SEE UNDER THE HEADING "COOPERATIVE SOCIETIES".

ANDHRA PRADESH EDUCATION ACT, 1982


10/42



Section 79 Appointment in leave vacancy is not regular appointment under No enquiry fo

removal of teacher appointed in leave vacancy necessary.

Kanthi Kumari P. (Smt.) v. State of A.P. [1999]

ANDHRA PRADESH (REGULATION OF

APPOINTMENTS TO PUBLIC SERVICES AND

RATIONALISATION OF STAFF PATTERN AND PAY

STRUCTURE) ACT, 1994

Regularisation of service of temporary employees on daily wage basis Those who completed

rive years of service, although not on date of petition, held entitled to be considered for

regularisation, subject to their fulfilling other conditions including those regarding appointment

at inception.

The present petitioners were N.M.R. Section writers on temporary daily wage basis and they sought awrit ofmandamus for regularisation of their services. The High Court disposed of the petitions with

directions.

Held: The High Court observed that the petitioners had completed five years of (temporary) service a

on the date of this judgment. Therefore the respondents could not refuse regularisation of their services

as per G.O. Ms. No. 212 of April 22, 1994. (Para 6)

However the respondents were entitled to consider whether the petitioners satisfied the other conditions

as to age, vacancies etc. and follow the rule of reservations. (Para 7)

The respondents could also consider whether the petitioners would satisfy conditions as to their

appointment at inception. (Para 9) Nagaraju T. v. District Collector& Chairman, Rural Developmen

Agency, West Godhavari Dist. [1999]

APPEAL

Right of appeal, a creative of statute No inherent right to prefer appeal, unless it is conferred

on litigant by law If appeal sought relief of implementation of award coming within prohibition

of Rule 5 of High Court Rules, appeal is not maintainable U.P. Industrial Disputes Act1947Sections 14 A & 16 Allahabad High Court Rules Chapter VIII Rule 5.

Rain Kripal Singli v. U.P. State Road Transport Corporation. [1999]

APPOINTMENT

SYNOPSIS


11/42



1. Ad hoc appointment

2. Vacancies

3. Miscellaneous

1. ADHOC APPOINTMENT

Ad hoc Class IV employee appointed ad hoc clerk against leave vacancy Respondent no

possessing requisite qualification High Court setting aside order of non regularisation Alsoordering employee to be continued as clerk Held, it cannot be upheld Constitution of India

1950 Article 226.

Improvement Trust, Ludhiana v. Kuldip Singh. [1999]

Appointment on ad hoc basis Right of such appointees to claim for regularisation or

reinstatement Persons appointed on ad hoc basis who were continued for 4 to 5 years cannot

claim reinstatement as of right They are entitled to sympathetic consideration State directed to

grant them relaxation to age and give them first preference in the event of appointment being

made to posts.

Appellants worked as Home Guards from 1985 to 1990. They were appointed on ad hocbasis and

worked upto July 1994. Contention of the State was that they were appointed only on fixed term basi

and were not given fresh appointment on the expiry of last term in 1994. Therefore, they were no

entitled for the relief of either reinstatement or regularisation. High Court issued direction for taking action

against the Officers who have granted extension to the appellants from time to time.

Held: The fact that all the 8 appellants had worked as Home Guards for the period from 1985 to 1990

and the further fact that they were appointed on ad hocbasis and had worked on the aforesaid postupto July 1994 is not disputed. Although the appellants, having been appointed on ad hocbasis canno

claim reinstatement as a matter of right. However, one cannot ignore the fact that the appellants were

appointed by the respondent on ad hocbasis and the appointments have continued from time to time

with the result they continued in service for 4 to 5 years. Therefore, they are entitled for sympathetic

consideration. Hence the appellants are entitled to the benefit of relaxation in age for the period for which

they are already in service as Corporal Instructors/Dispatch Riders. If the respondents at all intend or

proceed to make appointments on these posts, the appellants shall be given first preference. The

direction of the High Court to take action against the Officers who have granted extension to the

appellants from time to time is allowed to stand. (Paras 3 & 6) Balwinder Singh v. State of Punjab

[1999]

Appointment on ad hoc basis of Law Assistants in North Frontier Railway Appointees having

made representations to regularise their appointments cannot make grievance as though they

were not aware of appointment on ad hoc basis.

Appellants have sought regularisation of their service as Law Assistants who had been informed afte

two years that their promotions as such Assistants had been on ad hoc basis. The Administrativ

Tribunal held that the appellants were not entitled to promotion as Law Assistants on regular basis. The


12/42



Supreme Court in this appeal against the Tribunal's order only confirmed it and dismissed the appeal.

Held: The Supreme Court observed that it was not as though the appellants would not be aware of the

ad hoc basis of their appointment (on promotion) as Law Assistants and that was why they made

representations to regularise their promotions on ad hocbasis. Thus the appellants could not make a

grievance now. (Para 7) Sarma A.K. v. Union of India. [1999]

Appointment on ad hoc basis Right of such appointees to claim for regularisation or

reinstatement Persons appointed on ad hoc basis who were continued for 4 to 5 years claim

reinstatement as of right They are entitled to sympathetic consideration State directed to gran

them relaxation to age and give them first preference in the event of appointment being made

to posts.

Balwinder Singh v. State of Punjab. [1999]

2. VACANCIES

Appointment Vacancy arising on one selected candidate not joining It is not fresh vacancy

Restrictions imposed by Reserve Bank of India on fresh recruitment do not apply to such non

joining duty vacancy.

This writ appeal by the Indian Bank challenged an order of a single Judge directing the Banking Service

Recruitment Board to sponsor one candidate from the waiting list, in which the first respondent wa

included, to the Indian Bank for filling up a non joining duty vacancy which arose in the Bank. The High

Court dismissed the appeal.

Held: The High Court observed that the restrictions imposed by the Reserve Bank of India did not applyto the case on hand, which was one non joining duty vacancy and not of fresh vacancy. Therefore the

direction of the Single Judge to the Banking Service Recruitment Board to notify the next immediate

available vacancy to the appellant was perfectly in order. (Para 7) Indian Bank v. R. Jayasree. [1999]

3. MISCELLANEOUS

Appointment offered to persons whose land was acquired, under policy originally declared

Change brought about in policy could not affect person's vested right Nor take away such right

by such change giving it retrospective effect.

In allowing this petition against discriminatory action of the respondent Board, which lured, as it were

land owners to part with their land for its power project with offers of appointment, the High Cour

spoke the voice of justice rendering relief to a disappointed land owner by the said action of the Board

resulting in his losing both the land and the job. The reply of the Board that there was a change in its

policy since the time that such offer was made to the petitioner, which resulted in the denial of the job to

the petitioner, or that the petitioner was overage, did not succeed before the High Court.

Held: The High Court observed that the alleged change in the policy of the Board could not affect the


13/42



vested right of the petitioner under the policy originally declared. Such a right could not be taken away

by a subsequent change in the policy, with retrospective effect. (Para 8)

Finding that others who were over age were given relaxation in age, the effort of the respondent Board

to deny petitioner the job on ground of his being over age could not but be termed as discriminatory, the

High Court concluded. (Para 8) Malkiat Singh v. Punjab State Electricity Board. [1999]

Appointment Constitution of India, 1950Article 226 Appellant appointed Lambardar Orde

challenged by respondent's father Commissioner remanded matter to Collector for fresh

consideration on merits and demerits Order of removal challenged by appellant before

Financial Commissioner who declared that order of Collector had become final and

proceedings had become infructuous as a result of death of respondent's father Aggrieved by

that order, Respondent filed writ petition in High Court which remanded case to Collector

directing him to permit respondent to continue as Labrador till fresh decision was made as to

who should be appointed to post by inviting fresh applications from all interested persons

Aggrieved by High Court's order respondent riled this appeal High Court's order no

sustainable So long as appointment of appellant is not cancelled, it is not permissible to invite

fresh applications Matter remanded to Financial Commissioner as question of survival o

cause of action was to be decided Heir of Respondent Allowed to become party Appellan

allowed to raise all contentions permissible in law. (Para 5)

Khazan Singh v. Shamsher Singh. [1999]

Appointment to Civil Service (Executive Branch) Appointment to civil service challenged by

unsuccessful candidates Matter carried to Supreme Court Candidates were appointed as

Excise and Taxation Officers and also getting themselves impleaded before Supreme Cour

Supreme Court directing candidates to file proper writ petition before High Court Writ Petitionriled cannot be dismissed on ground of delay and laches Circular issued by Government can be

enforced Under circulars issued by Government, Appellants are entitled to be considered as

vacancies arise by reason of non appointment of some of the candidates especially when

vacancies arise within period of six months from date of previous selection.

Virender S. Hooda v. State of Haryana. [1999]

APPRENTICES ACT, 1961

Sections 2(aa), 18 and 22 Apprentices Training Rules, 1961 Rajasthan State Road Transport

Workers and Workshop Employees Standing Orders, 1965 Clause 12 Meaning of apprentice

Person undergoing training in pursuance of contract of apprenticeship Apprentice being only

trainee and not worker, cannot claim relief to absorb him in employment.

Petitioners herein were trainees under apprenticeship programmed of the respondent Transpor

Corporation, and they challenged in this petition denial of appointments in the Corporation. The High

Court dismissed the petition.


14/42



Held: The High Court observed after referring to Clause 12 of the Standing Orders and the statutory

provisions, that letters of selection of petitioners as trainees contained a condition that there was no job

guarantee. Further the contract form signed by the petitioners did not contain any clause providing for

employment. Hence petitioners could not claim any relief to absorb them in the employment of the

respondents. As per Section 18 of the Apprentices Act, 1961, the petitioners being apprentices were

only trainees and not workers. (Para 15) Babulal Slo Heera Lal v. Rajas than State Road Transpor

Corporation, Parivahan Marg. [1999]

Section 6 Period of apprenticeship Extended beyond one year by appraisal committee Whethe

such extended period can be counted for seniority of employee Seniority is a question of

comparison between incumbents in same cadre If performance of apprentice trainee is no

satisfactory requiring extension of training period, trainee not entitled to presumption o

completion of training period in one year Discrimination cannot arise on basis of illegal order in

another case.

The present L.P. Appeal by employer Electricity Board called in question an order of single Judge, who

while a] lowing a writ petition of the respondent employee, directed the Board to reconsider the question

of seniority of the respondent, on the footing that his apprenticeship could not be for more than one year

period, though, as a matter of fact, it had been extended in his case for more than a year on account o

an appraisal committee finding his performance not satisfactory. The High Court allowed the appeal

setting aside the impugned order of the single Judge.

Held: The High Court observed that the period of apprenticeship training had to be taken as anterior to

the entry into a service or cadre. (Para 18)

The respondent was not entitled to a presumption of completion of his apprenticeship on the expiry o

one year, bearing in mind the appraisal committee's unfavorable finding on his performance andconsequent extension of period of apprenticeship beyond one year. (Para 20)

The respondent's complaint of discrimination compared with others could not succeed as the legality and

validity in their case had first to be investigated before it could be directed to be followed in the case o

the respondent. (Para 22) Madhya Pradesh Electricity Board v. Dal Chand Rathore. [1999]

Section 13 If employer pays stipend at rate less than prescribed minimum, it cannot contend

compensation should be only at rate actually paid Such argument, if permitted, would allow

employer to take advantage of its own wrong.

Held: The High Court rejected another contention of the appellant that compensation should be

calculated only on the basis of wages (stipend) which the appellant was paying to the claimant and not on

the basis of minimum wages prescribed on the relevant date for the designated trade. The High Cour

observed that this contention would permit the appellant to take the benefit of its own wrong and besides

defeat the benevolent provisions of the statutes. (Para 14) Divisional Controller, G.S.R.T.C. v. Ashok

Kumar Keshavlal Parekh. [1999]

Section 16 Workmen's Compensation Act, 1923 Schedule If apprentice in establishmen


15/42



suffers personal injury caused to him by accident arising out of and in course of employment

his employer, liable to pay compensation.

Held: Refuting the contention of the appellant employer, the High Court observed that from a conjoin

reading of the provisions of the Apprentices Act, 1961 and the Workmen's Compensation Act, 1923, an

apprentice in an establishment in case suffered personal injury in the course of his employment, his

employer was liable to pay compensation under Chapter II of the aforesaid Act. (Para 13) Divisiona

Controller, G.S.R. T. C. v. Ashok Kumar Keshavlal Parekh. [1999]

Section 21 KSRTC (Cadre and Recruitment) Regulations, 1982 Claim for post of Helper based

on National Apprenticeship Training Scheme Claimant can be said to have completed

apprentice training only if he has passed test held under Section 21.

An unsuccessful claimant for the post of Helper (B) in the respondent Corporation filed this writ petition

seeking direction for his appointment. The High Court dismissed the petition.

Held: The High Court observed that the petitioner's challenge to the denial of the post was based on the

plea that the petitioner had undergone training under National Apprenticeship Training Scheme. But a

person could be said to have completed his apprentice training within the meaning of the Apprentice

Act, 1961, only if he was found to have passed the test held under Section 21 of the Act. Taking any

other view would defeat the very object and purpose of the Act and the law laid down by the Supreme

Court in [1995] (Para 9) Nagaraja A. v. Karnataka State Road Transport Corporation, Bangalore

[1999]

Section 22 Trade apprentices selected for training in Carriage and Wagon department o

N.F.Railway No guarantee of employment given while sending them for apprenticeship course

Letter of appointment in Group 'C' on temporary basis, stating their services could beterminated on 11days' notice or pay in lieu thereof Cancellation of their appointment and

alternative appointment in Group D (lower post) held, not arbitrary or discriminatory and no

violative of Articles 14 and 16 of Constitution.

The present appellants who were selected as trade apprentices under Apprentice Act, 1961 for

apprenticeship course in the Carriage and Wagon Department of N.F. Railway were aggrieved that the

cup of Group 'C' Fitter post had slipped their lips and they had to be satisfied with the Lower Group 'D

Carriage Khalasi post. They were first selected for Group 'C' (Class III) post on May 28, 1990 and in

less than one month, that is, on June 7, 1990, their appointment was cancelled and they were given fresh

appointment in Group 'D' (Class IV) post. They agitated their grievance before the CentraAdministrative Tribunal, Guwahati and having failed there, they came up in the present appeal before the

Supreme Court. The Supreme Court dismissed the appeal.

Held: The Supreme Court observed, after referring to Section 22 of the Apprentice Act, 1961, that the

appellants did not, after undergoing the apprenticeship course, have the right to be appointed. (Para 9)

Further the original appointment letter of May 28, 1990 (in Clause 2) informed the appellants that it was

purely on temporary basis, terminable on 11 days' notice or pay in lieu thereof. Its subsequen


16/42



cancellation could not therefore be said to be arbitrary or discriminatory and violative of Articles 14 and

16 of the Constitution. (Para 12)

The decision not to allow direct entry into Group 'C' a rule, namely Rule 159 of the Railways' Rules o

Recruitment and Training providing for 25% posts in Group 'C' to be filled by selection from apprentices

notwithstanding, was reportedly taken upon discussions between the Administration and the Unions in

view of stagnation of existing employers in Group 'D' waiting for promotion. This decision was therefore

held to be reasonable and taken to keep industrial peace. (Para 14) Mitrangshu Roy Choudhary vUnion of India. [1999]

APPRENTICES TRAINING RULES, 1961

Meaning of apprentice Person undergoing training in pursuance of contract of apprenticeship Apprentice

being only trainee and not worker, cannot claim relief to absorb him in employment.

Babulal S/o Heera Lal v. Rajasthan State Road Transport Corporation Parivahan Marg. [1999]

ARMY RULES, 1954

Rule 22 Dismissal of domestic orderly by court martial Nothing on record to show that Rule 22

was followed It showed total non application of mind nor was there any admission of guilt by

domestic orderly.

Held: This writ petition by a dismissed domestic orderly in the Army challenging his dismissal, was

allowed. The High Court found that no such statement as alleged by the respondents to have been given

by the petitioner at the time of hearing under Rule 22 of Army Rules, 1954, of the charge of stealing of a

steel almirah, was given by the petitioner or recorded. (Para 3)

There had been total non application of mind by the respondents. It was inherently impossible to allege

that the petitioner had stolen the steel almirah. (Para 3) Harnarayan Singh v. Union of India. [1999]

Rule 37 Form IAFD 916 Commanding Officer Court Martialled Necessity for written order by

Commanding Officer nominating personnel for Court Martial No record to show that personne

for Court Martial were appointed or nominated by Lt. General Order for assembly of Genera

Court Martial did not contain signature or initial of Lt. General Such Order was signed only by

Colonel No order evidencing appointment of Court Martial by Lt. General who has to satisfyhimself that charges to be tried by Court Martial are for offences within meaning of Army Ac

Not relevant to decide whether Rule 37 is only procedural in view of categorical stand taken by

appellant that there was an order by Commanding Officer appointing or detailing Officers to

form Court Martial Form for assembly of Court Martial does not contain signature or initial o

Lt. General No record to show that oral order was passed by Lt. General Rule 37 was violated

Court Martial has no jurisdiction to proceed with trial and entire proceedings are vitiated.

The Commanding Officer was issued a Charge Sheet containing 8 charges alleging certain irregularities in

regard to local purchase of material for repair. A General Court Martial was convened and after trial, the


17/42



Commanding Officer was found guilty of 4 out of 8 charges. He was awarded the sentence "to be

cashiered" and to suffer rigorous imprisonment for two years. The said sentence was confirmed by the

concerned authority. A writ petition was filed challenging the Court Martial proceedings as well as

punishment. The High Court accepted the contention that the constitution of Court Martial was not don

by the Commanding Officer as required under Rule 37(3) of the Army Rules. Hence the High Cour

took the view that the Court Martial has no jurisdiction to proceed with the trial and therefore, the entire

proceedings as well as order of punishment vitiated. Hence civil appeal by special leave.

Held: Admittedly there is no record whatsoever in the file to show that the personnel of the Cour

Martial were appointed by or nominated by the Lt. General. The Order for the assembly of a Genera

Court Martial did not contain either the signature or the initial of the Lt. General. It was signed only by

the Colonel and none else. In the circumstances the said order cannot be considered to be an orde

evidencing the appointment of personnel of the Court Martial by the Lt. General. There is no dispute that

under Rule 37, the Commanding Officer has to apply his mind to satisfy himself that the charge to be

tried by the Court are for offences within the meaning of the Act and that evidence justifies the trial o

those charges. The Commanding Officer has also to satisfy himself that the case is a proper one to be

tried by the kind of Court Martial which he proposes to convene. The form for assembly of Cour

Martial does not contain either the signature or initial of the Lt. General. Even assuming that the Lt

General passed an oral order, there is no record of any kind whatsoever to prove it. The form fo

assembly of Court Martial was not contemporaneous to such oral order, if any. In the absence of any

record whatever to show that the appointment of the personnel of the Court Martial was by the Lt

General the contention of the appellants that the requirements of Rule 37 were fully satisfied cannot be

accepted. (Para 7) Union of India v. Harish Chandra Goswami. [1999]

AWARD

Ex prate Award Employer not riling application before Labour Court for setting aside award

due to Supreme Court decision in [1981] Petition in High Court Delay in approaching Court

Vague averments on same Petition dismissed Industrial Disputes Act, 1947.

Delhi Development Authority v. Pradeep Kumar. [1999]

Ex prate award Employer not riling application before Labour Court for setting aside award

due to Supreme Court decision in [1981] Petition in High Court Delay in approaching Court

Vague averments on same Petition dismissed.

Held: Even in this petition except making vague averments, the petitioner has failed to give facts which

may amount to sufficient cause for its non appearance before the Labour Court. Except for a vague

averment that the petitioner's panel of lawyers had been changed and that the concerned file was

misplaced, no details of files with which this file may have been tagged on or misplaced have been

mentioned. It has also not been stated when it was traced. The petitioner has been utterly negligent in not

appearing before the Labour Court for nearly four years since the last appearance. Even this petition ha

been filed six months after the award. (Para 1) Delhi Development Authority v. Pradeep Kumar. [1999

Award of Industrial Tribunal inconsistent with statutory rules Writ petition filed for


18/42



implementing Award Arbitrator enhancing age of superannuation to 58 years contrary to

Statutory Rules which determined age of superannuation as 55 years Award under Industria

Disputes Act cannot be inconsistent with Law laid down by Legislature or by Service conditions

Such Award is illegal and cannot be enforced Decision by Constitution Bench cannot be

overlooked Decision by Bench of lesser strength is not binding authority, if it is inconsistent

with decision of Constitution Bench especially when attention of Judges deciding latter case

was not invited to earlier decision.

Giri N. S. v. Corporation of City of Mangalore. [1999]

Award of Labour Court Labour Court upholding order of dismissal issued to workman High

Court upheld award of Labour Court but directed employer to provide appointment in lower

category as new entrant High Court has jurisdiction to issue such direction after upholding

order of dismissal High Court can reduce severity of punishment on finding that punishment

was disproportionate No jurisdiction is vested in High Court to direct employer to reemploy

delinquent employee after upholding punishment. (Constitution of India, 1950 Article 226

Industrial Disputes Act, 1947 Section 11 A).

A.P.S.R.T C. v. K. Pochiah. [1999]

Dismissal order passed in violation of Section 12(3) of I.D. Act That vitiates domestic enquiry

However award is not vitiated as enquiry was conducted before Labour Court itself.

Venugopal V. v. Management of Reed Relays & Electronics Ltd., Madras. [1999]

BACK WAGES

SYNOPSIS

1. General rules

2. Grant of back wages

(a) On reinstatement

3. Denial of back wages

4. Quantum of back wages

(a) Fullback wages

(b) Reduction in back wages

1. GENERAL RULES

Backwages Normal rule is, workman, whose termination of service is held illegal, is entitled to

backwages except to extent he is shown to have been gainfully employed during enforced

idleness.

In this writ petition the State Bank of India questioned the legality of an order passed upon applications

made by respondent workmen under Section 33 C(2) of the I.D. Act, 1947, for back wages, pursuant


19/42



to their reinstatement in service under an award of the Industrial Tribunal cum Labour Court. The High

Court dismissed the writ petition.

Held: The High Court observed that the award directing reinstatement of respondent workmen was

totally silent as regards backwages. The normal rule of payment of backwages had to be applied in such

a situation, unless it was proved by the Bank, which it had not done, that the workmen had engaged in

some gainful employment during the relevant period. (Para 11) State Bank of India v. Ram Chandra

Dubey. [1999]

Backwages can be computed in application by workmen ordered to be reinstated Such

computation cannot be treated as conferring any new right upon workmen Industrial Disputes

Act, 1947Section 33 C(2).

State Bank of India v. Ram Chandra Dubey. [1999]

2. GRANT OF BACK WAGES

(a) On reinstatement

Untrained teachers in Notified Area Schools in Orissa Sent for training On completion o

training not allowed to join duty Joined duty at intervention of Administrative Tribunal Entitled

to back wages for period between completion of training and taken back on duty.

Appellants, untrained teachers, were taken over in the Notified Area schools and sent for training. On

completion of training they were not allowed to join duty. On the intervention of the Administrative

Tribunal, they were taken on duty, they claimed wages for the period they were not allowed to join duty.

Held: The appellants were not taken back. It cannot be said it was due to their fault. The Tribunal was

not right in denying their salary for the period from the date when they reported for duty on completion o

training till they were taken back on duty pursuant to the order of the Tribunal. (Para 5) Rabindra

Kumar Battick v. State of Orissa. [1999]

3. DENTAL OF BACK WAGES

Denial of back wages not proper when there is no material to connect employee with alleged

charges.

Held: The High Court further observed that except in exceptional cases denial of back wages was no

proper and permissible. The present was not one such case. When there was no material to connect th

appellant with the alleged charges, there was no justification to deny the back wages. (Para 7) Velappan

M.M. v. Commissioner, Madurai Municipal Corporation, Madurai. [1999]

Non payment of back wages justified in some circumstances But they cannot be denied for

reason that charges could have been established with better proof.


20/42



Held: The Supreme Court expressed its disapproval of the single Judge's view that non payment of back

wages could be justified, as in this case, for the reason that charges (against the appellant workman)

could have been established by better evidence. It was a view, the Supreme Court said, falling within the

realm of speculation. It expressed its surprise, that this view had been upheld by Division Bench (in the

writ appeal). (Para 9) Chandra Shekara Chari H.S. v. Divisional Controller, KSRTC. [1999]

Constitution of India, 1950 Articles 226, 227 Workman directly approached Writ Court agains

termination No enquiry can be held about gainful employment during period of forcedunemployment which is matter of enquiry Hence backwages consequent on reinstatement not

granted Workman left to claim from appropriate forum relief of backwages. (Para 22)

Pawan Kumar Shrivastava v. Municipal Corporation, Jabalpur. [1999]

Tribunal could not have directed payment of back wages, when it has upheld order of dismissal

The Supreme Court set aside in this appeal that portion of the Tribunal's order as affirmed by the High

Court, which directed the Management appellant to grant back wages.

Held: The Supreme Court observed that it was difficult to appreciate how the Tribunal could have

directed payment of back wages, even after upholding the order of dismissal of the respondent employee

from service. (Para 2) Lucas India Service Ltd. v. Presiding Officer, Labour Court, Madras. [1999]

Employee who had not put in 240 days service in a year cannot be regarded as temporary

employee Such employee cannot claim benefit of back wages in terms of settlement for period

when he was unemployed Industrial Disputes Act, 1947 Sections 25 B and 25 F.

State Bank of India v. Presiding Officer. [1999]

Refusal to grant backwages on ground that workman had not shown that he had not been able

to secure any employment It is not incumbent upon workman to make out a case for award of

'back wages by producing sufficient material Workman cannot be asked to prove the negative.

The petitioner was removed from service. The Labour Court after adjudication, modified the punishmen

from removal to stoppage of two increments, declining to grant relief of back wages, on the ground tha

the workman has not made out a case for back wages. Therefore the petitioner approached the High

Court.

After quoting various judgments of the Supreme Court and High Courts.

Held: The workman is not expected to prove the negative. (Para 10)

The view of the Labour Court that the workerhas not made out a case for back wages cannot be

sustained. (Para 13) Ishwar Singh v. Delhi Transport Corporation. [1999]

Finding of Labour Court that termination of service was illegal could not be accepted Service


21/42



of workman came to end on account of his failure to exercise option of accepting work a

another place within given time Award of back wages by Labour Court held unwarranted.

This petition by employer company challenged an award of the Labour Court, so far as it directed

payment of back wages to first respondent workman, he having already been reinstated in service as pe

the said award. The High Court allowed the writ petition.

Held: The High Court observed that it was difficult to accept the Labour Court's finding that there waillegal termination of the first respondent service. His services, in the High Court's view, came to an end

on account of his failure to exercise his option (to take up work at another place offered by the

employer) within the given time. The award with regard to back wages was wholly unwarranted. (Para

5) Gansons Engineers (P) Ltd. v. Shriram Y. Chhatre. [1999]

Suit for reinstatement and backwages Court decreeing reinstatement and ordering wages for 3

years and 2 months Respondent, instead of claiming decrial amount, making departmenta

representation on reinstatement Later, on refusal of representation, filing writ petition claiming

backwages Held, it was not permissible to claim back wages in a belated writ petition.

State of Punjab v. Sukhdev Singh. [1999]

Back wages pursuant to award determined payable Employer taking technical stand and

indulging in vexatious litigation Appeal dismissed with costs.

The appellant, a Tamil Nadu Government undertaking filed this writ appeal against an order of a single

Judge dismissing the writ petition of the appellant. The writ petition challenged a Labour Court's award

of a sum of Rs. 37,000 as back wages payable to the first respondent workman. The High Court

dismissed the appeal with costs.

Held: The appellant was indulging in vexatious litigation all along in fighting a poor worker (firs

respondent) by initiating and opposing proceedings, wasting public money. (Para 4) Arasu Rubbe

Corporation Ltd. v. Thangamuthu. [1999]

4. QUANTUM OF BACK WAGES

(a) Full Back Wages

Termination found to be illegal Reinstatement ordered with 50% backwages Full backwages

are normally to be ordered once order of termination is found to be illegal and set aside

Backwages can be reduced only in exceptional circumstances.

Held: It is well settled law that normally when termination order is set aside full backwages has to be

awarded. But it is only in exceptional cases that it is not. No such exceptional circumstance has been

pointed by Labour Court for award of 50% of backwages after directing reinstatement of the employee

(Para 5) Durga Singh v. Labour Court, Dehradun. [1999]


22/42



Termination found illegal by Labour Court Ordering reinstatement with 50 per cent backwages

Management not having proved that workman was gainfully employed, full backwages should

be paid to workman Industrial Disputes Act, 1947 Section 11 A Schedule 2, Item 3.

Jagmal Singh v. Presiding Officer, Labour Court, Haryana, Rohtak. [1999]

If termination of service is held neither proper nor justified and if workmen were ready to work

but kept away there from, not awarding them full backwages will not be justified.

The present writ petitioner, a Traffic Controller in the respondent Transport Corporation had to fight this

long legal battle extending over nearly two decades, to establish his innocence against a charge of having

obtained his appointment illegally on false representations. This writ petition was necessitated, as he

failed to get backwages and continuity of service, although his removal from service was set aside and

reinstatement was ordered under the impugned order of the Industrial Tribunal. The High Court granted

continuity of service and 50% backwages, while allowing the writ petition.

Held: The High Court observed that there could be no dispute in this case that the petitioner was a

workman within the meaning of I.D. Act. (Para 4)

Taking all the facts and circumstances of the case, there could be no dispute that the petitioner would be

entitled to continuity of service and substantial portion of backwages. (Para 7) Ratnakar Arnrith Karnath

S. v. Karnataka State Road Transport Corporation. [1999]

Whether workman, on reinstatement, should be paid full back wages A question of fac

Whether workman was gainfully employed elsewhere an important factor to be considered

Public interest also to be considered in awarding back wages.

Held: In this appeal, the U.P. Financial Corporation challenged the judgment of a single Judge who

directed payment of full back wages to the first respondent employee of the Corporation, while allowing

his writ petition and quashing the order of dismissal passed by the Corporation's Board of Director

against the first respondent. The only question raised in the appeal was whether the first respondent was

entitled to full back wages on his reinstatement. The High Court, while confirming the single Judge's

Judgment, and disposing of this appeal directed the appellant Corporation to hold an enquiry on the

question whether the first respondent should be given full back wages and decide the same upon such

enquiry. (Para 13) U.P. Financial Corporation v. V.P. Sharma. [1999]

(b) Reduction in back wages

Employer was found to be indulging In unfair labour practice Industrial Court coming to

conclusion that termination of services of employee would amount to unfair labour practice

Employee reaching age of superannuation during pendency of proceedings of High Court High

Court directed employer to pay wages and other benefits from date of retrenchment till date o

retirement Considering all aspects, employer directed to pay to workman one third of back

wages with all other consequential benefits from date of retrenchment till date o

superannuation within three months Failure on part of employer to pay suit amount would


23/42



result in employer paying interest @12% on the expiry of three months till date of actua

payment.

Lokmat Newspapers Pvt. Ltd. V. Shankarprasad [1999]

Employee not joining duty on award of Labour Court directing reinstatement Labour Court's

award of full back wages reduced to 50% and payment thereof made conditional on employee

reporting for duty within four weeks.

A dismissed Conductor of appellant Transport Corporation did not rejoin duty pursuant to an award o

the Labour Court holding his dismissal to be not sustainable and directing his reinstatement with full back

wages. The appellant Corporation having failed in its writ petition challenging the Labour Court's award

came up in the present appeal to the Supreme Court. The Supreme Court disposed of the appeal with

directions.

Held: Finding that the respondent workmen had no justification not to have reported for duty after the

Labour Court's order or at any rate after the dismissal of the writ petition or the limited stay by the

Supreme Court which was only in regard to payment of back wages, the Supreme Court limited the

payment of back wages to 50% and that, too, conditional upon the respondent reporting for duty within

4 weeks. (Paras 6 & 7) Bihar State Road Transport Corporation v. Kameshwar Prasad Thakur

[1999]

BANK OF COCHIN SERVICES CODE

Chapter VII Para 22(iv)(e) Major Misconduct Minor Misconduct Likelihood of serious loss

coupled with negligence would amount to Gross Misconduct Proof of serious loss is not

necessary and likelihood of loss is sufficient to prove charge of Gross Misconduct Simplenegligence also will come under Gross Misconduct if on account of such negligence, Bank is

likely to get involved in serious financial loss.

Bank of Cochin got amalgamated with State Bank of India w.e.f. April 27, 1985. The Manager of the

Madras Branch of Bank of Cochin was issued a Charge Memo in respect of misconduct committed said

to have been committed by him during 1977 1981. On August 25,1981, he was transferred to Calcutta

and he received Letters of Commendation during March 1983 and April 1984 as the Branch in which he

was Manager Stood at No. 1 in the matter of mobilisation of Advances. Some advances given by him

while working as Manager at Madras during 1977 1981 could not be recovered and hence, on February4, 1984 he was reposted at Madras for the purpose of recovering the advances. He made substantia

recoveries but he was suspended on July 13, 1984 and was served with a Charge Sheet on Septembe

18, 1984 for giving advances unauthorisedly and without observing the lending norms. He denied the

charges. A domestic enquiry was held by the Advocate who was appointed as the Enquiry Officer. The

Enquiry Officer found that there was no proper sanction/ratification from Head Office with regard to

certain sanctions and certain other charges he found not proved. The Disciplinary Authority issued a

second Show Cause Notice on January 22, 1986 proposing dismissal without notice accepting the

findings of the Enquiry Officer that he was found guilty of 'Gross Negligence' and also for violation o

Head Office instructions. The Disciplinary Authority passed orders dismissing the Manager from the


24/42



services without notice on March 20, 1986. On Appeal, the Appellate Authority modified the said order

to one of removal in terms of Rule 49(g) of State Bank of India (Supervisory Staff) Rules. A writ petition

was filed questioning the said order. The learned single Judge allowed the writ petition and held that the

findings of the Enquiry Officer on Item 23 was that no financial loss was proved and it was a case of no

taking adequate 'security' from the loaners and not obtaining ratification as per Head Office instructions

These charges were not sufficient for imposing the penalty of dismissal or removal and only a Minor

Penalty could be imposed. The High Court also took the view that the S.B.I. Rules would not be

applicable since the misconduct alleged related to the period of the service in the Bank of Cochin. It wasalso found by the learned single Judge that the punishment of removal could not have been imposed as it

was not one of the enumerated punishments under the Bank of Cochin Rules. The learned Single Judge

while setting aside the Order of removal, observed that the Bank could impose any punishment for Minor

Misconduct as per Rules of Bank of Cochin. The writ appeal preferred in the said Judgment was also

dismissed. Hence the Civil Appeal by Special Leave.

Held: The definition of "Gross Misconduct" in Para 22 (iv) of Bank of Cochin Code, inter aliaprovide

that doing of any act prejudicial to the interest of the Bank or gross negligence or negligence involving o

likely to involve the Bank in serious loss is Gross Misconduct. In other words, likelihood of serious loss

coupled with negligence is sufficient to bring the case within gross misconduct. The Enquiry Officer'

finding of 'gross misconduct' on the ground of not obtaining adequate security is, therefore, correct and i

cannot be said to be based on no evidence. This can be contrasted with Para 22(vi)(c) under minor

misconduct which deals with "neglect of work and negligence in performing of duties". Therefore, seriou

loss is not necessary but likelihood of loss is sufficient to bring home Gross Misconduct. (Para 15)

Gross negligence or negligence likely to involve the Bank in serious loss would come under major

misconduct within Para 22 (iv)(1). Even assuming that there is no gross negligence, simple negligence wil

come under major misconduct if accompanied by 'likelihood' of serious loss and this is clear from Para

22 (iv)(1). Therefore, the findings of the Enquiry Officer regarding gross misconduct is correct and couldnot have been set aside by the High Court. The findings of the Enquiry Officer clearly bring the case

under 'major misconduct'. (Para 16) State Bank of India v. T.J. Paul. [1999]

BANK OF INDIA GRATUITY RULES

Rule 8 Employee getting benefit of higher post Under scheme requiring resignation from pos

previously held by employee, Employee cannot approbate and reprobate Having received

benefit of higher post, he cannot say resignation was obtained by coercion.

Bank of India v. Kalyan Kumar Sarkar. [1999]

BANK OF INDIA OFFICER EMPLOYEE9S (CONDUCT)

REGULATIONS, 1976

Regulation 7(l) Restriction imposed on officer employee to own, conduct or participate in

editing or management of any Newspaper or Periodical publication where such newspaper o

periodical publication does not publish matters which are purely literary, artistic, scientific


25/42



professional, cultural, educational or social character Restriction imposed by Clause (1) of

Regulation 7 cannot be validly challenged Clause (1) of Regulation 7 is valid and reasonable

Proviso to Regulation 7 applies to all 3 Clauses.

The Bank of India Officers' Association filed a Writ petition challenging, inter alia, Regulation 7 of the

Bank of India Officer Employees' (Conduct) Regulations, 1976, on the ground that it encroached upon

the fundamental rights of the Officer Employees. The High Court struck down Regulation 7 even though

the challenge restricted to Clause (1), of Regulation 7. Bank of India and others filed an appeal againsthe decision of the High Court.

Held: Clause (1) of Regulation 7 cannot be validly challenged. It is eminently reasonable that an office

employee of the Bank should not own, conduct, edit or manage a newspaper or other periodica

publication that does not deal with literary, artistic, scientific, professional, cultural, educational, religiou

and social matters. The Proviso to Regulation 7 applies to all the three clauses of the said Regulation

Clauses (2) and (3) of the Regulation were not challenged. The appeal is allowed and the Judgment o

the High Court set aside in so far as it strikes down Regulation 7 of the Bank of India Officer Employees

(Conduct) Regulations, 1976. (Paras 3 & 4) Bank of India v. Bank of India Officer 'Association

[1999]

BANK OF INDIA OFFICER EMPLOYEES' (DISCIPLINE

&

APPEAL) REGULATIONS, 1976

Regulation 12(l)(a) Objection that authority passing order of suspension or of removal had no

competence to do so Not countenanced Removal could not be held as one based on no

evidence.

Satish Mehra v. Bank of India. [1999]

BANKING COMPANIES (ACQUISITION AND

TRANSFER OF UNDERTAKINGS) ACT, 1970

Indian Overseas Bank Officers Employees Discipline and Appeal Regulations, 1976

Regulation 6(6) Appointment of Presenting Officer It is directory, and not mandatory Inquiry

Officer acting both as prosecutor and judge in the domestic enquiry renders enquiry unfair.

Radhakrishna Setty v. Deputy General Manager, (Disciplinary Authority), Indian Overseas Bank. [1999

Section 19 United Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976

Regulation 17 Opportunity of being heard or assistance of lawyer Not provided for in

Regulations Order cannot be assailed on this ground Non supply of inquiry report Does not

ipso facto vitiate enquiry Bias objection Raised after an order is made Not maintainable

Appeal New plea, Plea not maintainable.


26/42



Held: There is no provision in the Regulations while considering an appeal against the order of the

disciplinary authority to give an opportunity of personal hearing by the employee appellant or to gran

assistance of a lawyer. The order of the appellate authority, therefore, cannot be assailed on the ground

of non opportunity for hearing. However, where the appellate authority decides to enhance the penalty

imposed, it is the duty of the appellate authority to afford show cause notice to the employee. (Para 6)

Non supply of preliminary enquiry report does not ipso facto vitiate the enquiry held. (Para 18)

Any objection regarding any bias against the enquiry officer cannot be raised after the enquiry was

completed and order of appointment was passed. (Para 21)

A new plea cannot be raised for the first time during the appeal. (Para 2 1) Dilip K. Shah v. United

Bank of India. [1999]

Section 19 Canara Bank Officer Employees (Discipline and Appeal) Regulations, 1976

Regulation 8(2) Delinquent seeking disciplinary authority to hold impartial enquiry Minor

penalty imposed without an enquiry Held, it is not proper.

Held: Delinquent officer, in his reply to the charge memo, requests the disciplinary authority to hold an

impartial enquiry, if he is not satisfied with the explanation. The disciplinary authority has imposed a minor

penalty. There is nothing in record to show that the authority had given a finding on the question. There i

no express provision in the regulation for the disciplinary authority to consider the same or pass an

appropriate order. But when such a request is made by the delinquent officer, it is for disciplinary

authority to consider it and pass appropriate orders. This unwritten duty is fundamental to a just decision

by any authority which decides a controversial issue affecting the rights of the parties. (Para 9)

Sundaram G. v. General Manager, (Disciplinary Authority) Canara Bank, Bangalore. [1999]

Section 52 New Bank of India (Officers) Service Regulations, 1982 Regulation 7 Finding of

fact by single Judge Not challenged in appeal cannot be re opened in appeal in Supreme Cour

Promotion policy in New Bank of India Policy held not discriminatory.

Shanna K. B. v. Union of India. [1999]

BANKING REGULATION ACT, 1949

Section 10(l)(B)(i) Conviction for offence involving moral turpitude Probation of Offenders Act

1958 Section 4(l) Indian Penal Code Section 498 A Husband of woman subjecting her to cruelty

Employee of Bank convicted by Criminal Court for offence u/S 498 A and sentenced fo

imprisonment as well as fine High Court on revision giving benefit of Probation of Offenders

Act to such employee Subsequently disciplinary action initiated by Bank resulting in

disciplinary action imposing punishment of discharge from service Husband subjecting his wife

to cruelty within meaning of Section 498 A Is offence involving moral turpitude Release under

Probation of Offenders Act will not wipe away guilt and conviction Mere release under

Probation of Offenders Act is not ground to escape from provision of Section 10(l)(B)(i) o

Banking Regulation Act No lesser punishment can be imposed than Discharge from Service


27/42



Employee convicted by Criminal Court for offence under Section 498 A and released under

Probation of Offenders Act cannot claim reinstatement and Order of Discharge cannot be se

aside.

A Bank Employee was discharged from service for the reason that he committed an offence involving

moral turpitude. He was prosecuted for commission of an offence u/S 498 A of the Indian Penal Code

and he was convicted for imprisonment as well as punishment of fine. The conviction and sentence were

upheld by the Appellate Court. On revision, the High Court upheld the conviction but the employee wasgiven the benefit of Section 4-1 of the Probation of Offenders Act, 1958. Though convicted, the

employee did not undergo imprisonment. Departmental proceedings were initiated against the employee

on the ground that he was found guilty by the Criminal Court of an offence involving moral turpitude as a

result of which he was as already stated, discharged from service. The employee unsuccessfully filed an

Appeal before the Appellate Authority.

Held: A reading of Section 19(l)(B)(i) of the Banking Regulation Act, 1949, makes it clear that the

offence under the said Section involves moral turpitude. An offence under Section 498 A of the I.P.C

Provides, inter alia, that the husband or the relative of the husband of woman, subjecting her to cruelty

shall be punished with imprisonment for a term which may extend upto 3 years and shall also be liable to

be punished with fine; if established can be regarded as one involving moral turpitude and in such case

Section 19(l)(B)(i) of the Banking Regulation Act is attracted to send away the offender from service

(Paras 4 & 5)

Benefit under Section 4(l) of the Probation of Offenders Act, if extended to an accused to escape from

the sentence of imprisonment, will not wipe away the guilt established on him. The Supreme Court in

Harichand v. Director of School Education reported in [1998] has held that a Government servan

cannot escape from dismissal from service on the basis of the conviction on the reason that he had been

released on the basis of Section 4(l) of the Probation of Offenders Act. Naturally, the revisional orderenabling the release of the petitioner on such basis cannot be said to be a ground to impose any lesse

penalty than that of sending him away. Out of the several modes of such sending away, the simplest form

of discharge is imposed upon the petitioner by the disciplinary authority as well as by the appellate

authority. (Para 6) Vincent Varghese v. State Bank of India. [1999]

Section 23 Appellant bank could not have opened, new branch without permission of Reserve

Bank of India Though opening a branch without such permission was illegal, appointments o

employees were not shown to be for purpose of working at said branch Directives of Reserve

Bank of India under Banking Regulation Act could not adversely affect such employees.

Held: On the substantial question whether the impugned action of the Administrator in stopping paymen

of salary to the writ petitioners, the High Court held the directives of the Reserve Bank of India in terms

of Section 23 of the Banking Regulation Act, 1948 could not adversely affect the petitioners who were

not shown to have been appointed solely for the purpose of working at the branch opened withou

permission of the Reserve Bank of India. (Para 19)

Further the Administrator in directing such stoppage of salary payment was taking a major policy

decision which he could not take without leave of the Court, as per its directions in the matter. (Para 21)


28/42



SBISA Co operative Bank Ltd. v. Tarun Kumar Saha. [1999]

Section 45(7) Scheme of amalgamation Notification for, declaring all liabilities, duties and

obligations of Hindustan Commercial Bank taken over by Punjab National Bank Appeal by

dismissed employee pending with Hindustan Commercial Bank, at time of amalgamation

Punjab National Bank not taking steps for disposing of appeal Writ petition against i

maintainable.

In this writ petition, an employee of the Hindustan Commercial Bank Ltd. challenged his dismissal for

which he had preferred an appeal to the appellate authority of the Bank. While the appeal was pending

the Bank was amalgamated with the Punjab National Bank through a scheme notified by the Government

of India under Section 47(7) of the Banking Regulation Act, 1949. The High Court allowed the writ

petition.

Held: The High Court observed that at the time of amalgamation the appeal preferred by the petitione

was pending with the Hindustan Commercial Bank Ltd. The Punjab National Bank on taking over al

liabilities and obligations of the Hindustan Commercial Bank should have also undertaken the task o

disposing of the appeal. Admittedly that had not been done. The stand taken by the Punjab Nationa

Bank that the writ petition was not maintainable inasmuch as the Hindustan Bank was not a nationalised

Bank ran counter to the scheme of amalgamation. (Para 13)

Even on merits the impugned order of dismissal was held to be contrary to well established principle. No

inquiry was held, no finding given and no material on record to sustain the dismissal. (Para 14) Podda

S.K. v. Chairman, Punjab National Bank. [1999]

BEEDI AND CIGAR WORKERS (CONDITIONS OF

EMPLOYMENT) ACT, 1966

Sections 2(f)(i), 2(h) Payment of Gratuity Act, 1972 Section 1(3)(b) and 2(e) 'Home worker

although working away from factory would still be considered working in establishment and

covered by Gratuity Act.

The petitioner Beedi Factory denied payment of gratuity to the widow of one of its 'home workers' on

the ground such 'home worker' was not an ,employee' within the meaning of Section 2(e) of the Gratuity

Act. Having failed in such denial before the authorities under the said Act, the petitioner came forward

with the present writ petition challenging the order of the said authorities. The High Court dismissed thewrit petition.

Held: The High Court observed 'home worker' like the husband of the third respondent was very much

a person working in the establishment within the meaning of Section 2(e) of the Gratuity Act, since the

place where he rolled the beedies, though situated away from the Beedi Factory was nevertheless a par

of the establishment within the meaning of Section 2(h) of the Beedi Act. (Para 9) Bagi Beedi Factory v

Appellate Authority. [1999]


29/42


ww.rushabhinfosoft.com/webpages/