Labour & Service Weekly Round-Up: 6th May to 12th May 2024

Departmental Enquiry Cannot Be Dispensed With Based On Presumption That Accused Police Personnel Would Threaten Witnesses: Delhi High Court

Case No.- W.P.(C) 5562/2024, CAV 181/2024, CM APPL. 22929/2024 -Stay. CM APPL. 22930/2024 -Ex./LLOD

Case Name- Commissioner of Police & Ors vs Sant Ram

A division bench of the Delhi High Court comprising of Justice Rekha Palli and Justice Saurabh Banerjee while deciding a Writ Petition in the case of Commissioner of Police & Ors vs Sant Ram has held that enquiry cannot be dispensed with only on the basis of a perceived notion that the accused being a police personnel would threaten the witnesses and holding of an enquiry would cause trauma to the complainant.

Termination Order Based On Enquiry For Misconduct Behind The Back Of The Officer Is Violative Of PNJ: Delhi HC

Case No.- W.P.(C) 12696/2023

Case Name- Govt. of NCT of Delhi & Ors vs Virender

A Division Bench of the Delhi High Court comprising of Justice V. Kameswar Rao and Justice Anoop Kumar Mendiratta while deciding a Civil Writ Petition in the case of Govt. of NCT of Delhi & Ors vs Virender has held that a termination order which is based on the report of an inquiry in which misconduct of a definite nature was arrived at behind the back of the officer is violative of principles of natural justice.

Bombay High Court

Compassionate Appointment Can Only Be Claimed in Accordance with the Existing Policy And Not As A Matter Of Right: Bombay HC

Case: Sau. Asha wd/o Haridas Katwale & Ors. v. The Manager (Mines), M/s Wester Coalfields Ltd. Bhadrawati & Ors

Case No. W.P. No. 7361/2023

A division bench of the Bombay High Court comprising of Justice Avinash G. Gharote and Justice. M.S. Jawalkar while deciding a writ petition in the case of Sau. Asha wd/o Haridas Katwale & Ors. v. The Manager (Mines), M/s Wester Coalfields Ltd. Bhadrawati & Ors. has held that compassionate appointment can only be claimed in accordance with the existing policy and not as a matter of right

Court Cannot Interpret Conditions Of Advertisement Contrary To Plain Language Of The Same: Bombay High Court

Case No.- CWP No. 7650 of 2023

Case Name- Ashok Mallinath Halsangi & Ors v State of Maharashtra & Ors

A Division bench of the Bombay High Court comprising of Justice A.S. Chandurkar and Justice Jitendra Jain while deciding a Writ Petition in the case of Ashok Mallinath Halsangi & Ors vs State of Maharashtra & Ors has held that the court in the garb of judicial review cannot sit in the chair of appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.

Calcutta High Court

Recovery Of Excess Payment To Employee On Ground Of Erroneous Pay Scale, Cannot Be Made At End Of Service: Calcutta High Court

Case No. : WPO No.1586 of 2023

Case Name : Badal Kumar Mandal vs. Chairman Indian Museum Board Of Trust And Ors.

A single judge bench of the Calcutta High Court comprising of Hon'ble Justice Rajasekhar Mantha, while deciding Writ Petition in the case of Badal Kumar Mandal vs. Chairman Indian Museum Board Of Trust And Ors., held that irrespective of whether the upgradation of pay scale and posts is made contrary to law, recovery of any excess payment received by the employee on the ground of such revision cannot be made either at the end of the service of the employee or thereafter.

Tribunal Order On Legality Of Domestic Enquiry Can Be Challenged Without Waiting For Final Order : Calcutta High Court

Case No.- WPA 9360 of 2024

Case Name- CSB Bank Ltd vs UOI & Anr.

A single judge bench of the Calcutta High Court comprising of Justice Arindam Mukherjee while deciding a Writ Petition in the case of CSB Bank Ltd vs UOI & Anr. has held that an order of a Tribunal can be challenged in a writ petition without waiting for the final order on ground of being in excess of jurisdiction.

Allahabad High Court

Entitlement To Gratuity Not Dependent On Retirement Age But Number Of Years Of Service : Allahabad High Court

Case Title: Sehrun Nisha v. State Of Up And 3 Others [WRIT - A No. - 6402 of 2024]

The Allahabad High Court has held that gratuity would be payable to a government employee based on his years of service and not on the age at which he retires.

“Retirement at sixty years is not an entitling fact, which leads the employee to acquire a right to receive gratuity, which he otherwise does not have. An employee gets his right to gratuity according to the number of the years that he serves,” held Justice J.J. Munir.

Gujarat High Court

The Labour Court Must Give The Employer An Opportunity To Be Heard Before Concluding The Enquiry : Gujarat High Court

Case Title: Rajkot Municipal Corporation Versus Rajeshbhai Ramjibhai Purabiya

LL Citation: 2024 LiveLaw (Guj) 65

The Gujarat High Court division bench of Justice Biren Vaishnav and Justice Pranav Trivedi held that if the inquiry conducted by the employer was found illegal or violative of principles of natural justice, the Labour Court is legally obligated to provide an opportunity of hearing to the employer before deciding the matter. The bench concluded that both the Single Judge bench and the Labour Court erred in jurisdiction by not affording the employer an opportunity to present evidence before the Labour Court.

Period Prior To Regularisation Date Should be Factored Into Calculation Of Pension And Other Retirement Benefits: Gujarat High Court

Case Title: Naran Devashi Meheshwari & Anr. Versus State Of Gujarat & Ors.

LL Citation: 2024 LiveLaw (Guj) 62

Case Number: R/Special Civil Application No. 15908 Of 2018 With Civil Application (For Bringing Heirs) No. 1 Of 2023 In R/Special Civil Application No. 15908 Of 2018

The Gujarat High Court single bench of Justice Nikhil S. Kariel held that the period prior to the date of regularisation, wherein the Workman met the requirement of working 240 days, must be factored into the calculation of pension and other retirement benefits.

Kerala High Court

Employee's Right To Seek Treatment From Hospital Of Choice Cannot Be Curtailed By Circulars Issued By Employer: Kerela High Court

Citation: 2024 LiveLaw Ker 286

Case No.- MFA (ECC) NO.52 OF 2018

Case Name- Area Manager, Food Corporation of India vs P.T. Rajeevan

A single judge bench of the Kerela High Court comprising of Justice G. Girish in the case of Area Manager, Food Corporation of India vs P.T. Rajeevan has held that the right of the employee to seek treatment from the hospital of his choice cannot be curtailed by the circulars issued by employer

Punjab and Haryana High Court

Workman Must Not Be Punished For Devoting Time Before Wrong Forum Based On Misconception Or Ill-Advice: Punjab And Haryana High Court

Case Title: Gopal Krishan vs State of Punjab and Others

Case Number:CWP-17945-1997 (O&M)

The Punjab and Haryana High Court single bench of Justice Sanjay Vashisth held that the workman's withdrawal of the civil suit implied permission to pursue a remedy under labour law. The bench noted that the Industrial Tribunal refused to grant relief to the Workman based on the fact that he pursued the same matter in a civil court earlier.

The High Court held that time spent in proceedings before the civil court would not count towards the period of limitation. Further, the workman should not be punished for devoting his time before the wrong forum as usually it is based on some misconception or ill-advise.

Himachal Pradesh High Court

Mere Plea Of Abandonment Not Sufficient, Employer Has To Prove Specific Notices Were Issued To Workman Asking Him To Join Duty: Himachal Pradesh High Court

Case Title: The State of H.P. & another vs Prakash Chand

Citation: 2024 LiveLaw (HP) 19

Case Number: CWP No.2565 of 2024

The Himachal Pradesh High Court single bench of Justice Sandeep Sharma held that mere plea of abandonment, if any, taken by the employer may not be sufficient to prove that workman abandoned the job. It held that it is incumbent upon the employer to place on record substantial evidence to prove that specific notice was issued to the workman before alleged abandonment advising/asking workman to join duty within stipulated period.

Orissa High Court

Banks Should Release Title Deeds Of Property Which Were Not Intended To Be Secured Asset For A Particular Loan : Orissa High Court

Case No. : W.P.(C) No.26178 of 2023

Case Name: Balaram Choudhury vs. Indian Bank, Bhubaneshwar

A single judge bench of the Orissa High Court comprising of Dr. S.K. Panigrahi, J., while deciding a Writ Petition in the case of Balaram Choudhury vs. Indian Bank, Bhubaneshwar, held that banks have to release the title deeds of property which is not intended to be secured asset for a particular loan as it will not create any security interest in favor of the bank.

Madras High Court

Employees Need To Fulfil Required Years Of Service and Practical Experience as per Rules for Promotion : Madras High Court

Case No. : W.P.Nos.19396 and 9218 of 2018

Case Name: G. Ravichandran vs. Tamil Nadu State Transport Corporation (Salem) Ltd.

Citation: 2024 LiveLaw (Mad) 194

A single judge bench of the Madras High Court comprising of Honourable Mr. Justice Mummineni Sudheer Kumar, while deciding Writ Petitions in the case of G. Ravichandran vs. Tamil Nadu State Transport Corporation (Salem) Ltd., held that in order to qualify for promotion, employees must satisfy the necessary practical experience and the required number of years of service.

Deductions Made Under GPF Scheme Do Not Automatically Entitle Employees To Pension Benefits : Madras High Court

Case No. : W.P.No.34295 of 2017

Case Name: Pipmate Integrated Staff Welfare Association vs. Chief Secretary, Government of Puducherry

Citation: 2024 LiveLaw (Mad) 193

A single judge bench of the Madras High Court comprising of Honourable Mr. Justice Mummineni Sudheer Kumar, while deciding Writ Petition in the case of Pipmate Integrated Staff Welfare Association vs. Chief Secretary, Government of Puducherry, held that Employees are not automatically entitled to pension benefits based on deductions made under the GPF scheme.

As Long As There Is A Manpower Requirement By The Employer, The Employee's Services Should Be Utilized Without Resorting To Replacing With Casual Workers: Madras HC

Case: P. Elilarasan v. The Executive Director, Air India Ltd. & Ors.

Citation: 2024 LiveLaw (Mad) 191

Case No. W.P. No. 10966/2018

A Single-Judge bench of Madras High Court comprising of Justice Battu Devanand while deciding a writ petition in the case of P. Elilarasan v. The Executive Director, Air India Ltd. & Ors. has held that as long as there is a manpower requirement by the employer, the services of the employee ought to be utilized and at no point of time should he be replaced by any other causal arrangement by resorting to employ other persons.

Petitioner's Qualifications Should Not Be A Barrier To Compassionate Appointment: Madras HC

Case: B. Saravanan v. The Commissioner, Adi Dravidar Welfare Commission & Ors

Citation: 2024 LiveLaw (Mad) 190

Case No. W.P. (MD). No. 1435 of 2024

A single-judge bench of the Madras High Court comprising of Justice L. Victoria Gowri while deciding a writ petition in the case of B. Saravanan v. The Commissioner, Adi Dravidar Welfare Commission & Ors has held that the petitioner's qualifications should not be a barrier to compassionate appointment.

Gauhati High Court

Daily Wager Employed By State Without Issuance Of Advertisement Or Selection Process Isn't Entitled To Claim Protection From Retrenchment: Gauhati High Court

Case Title: Binoy Kumar Sinha Vs The Asstt. General Manager Admin. State Bank Of India And Ors.

Case Number: Case No. : WP(C)/1331/2014

The Gauhati High Court single bench of Justice Michael Zothankhuma dismissed a writ petition noting that neither an advertisement was issued, nor any selection process was followed before engaging the employee as an occasional daily wager. It further held that State Bank of India (SBI) is State under Article 12 of the Constitution. Therefore, it would have to make appointments through advertisement and a proper selection process, in terms of Articles 14 and 16 of the Constitution.

Meghalaya High Court

Estoppel Against Challenging The Nature Of Employment Once It Duly Accepted: Meghalaya High Court

Case No.- WP(C). No. 141 of 2022

Case Name- Gurdeep Singh & Ors vs UOI

A single judge bench of the Meghalaya High Court comprising of Justice H.S. Thangkhiew while deciding a Writ Petition in the case of Gurdeep Singh & Ors vs UOI & Ors has held that there is an estoppel against challenging the nature of employment once the employee has duly accepted the same.

Central Administrative Tribunals

Workman's Past Conduct Of Unauthorized Absence Can Be Considered While Deciding Quantum Of Punishment For New Offence: Central Administrative Tribunal, Lucknow

Case Title: Bachchey Dhanuk vs Union of India and Others

Case No.: Original Application No. 00219/2013

The Central Administrative Tribunal, Lucknow division bench of Pankaj Kumar (Administrative Member) and Anil Kumar Jha (Judicial Member) held that a Workman's past conduct of unauthorized absence can be taken into consideration by the Disciplinary Authority while deciding the quantum of punishment for a new offence or unlawful conduct.

Excess Payment Of Allowances To Employees Not Recoverable Due To Inadvertent Error On Part Of Employer: New Delhi Central Administrative Tribunal

Case Title: Parveen Kumar and Others vs New Delhi Municipal Council and Others.

Case Number: O.A. No. 1328/2022

The Central Administrative Tribunal Principal Bench, New Delhi of Manish Garg (Judicial Member) and Dr. Anand S. Khati (Administrative Member) held that the excess payment of allowances to an employee are not recoverable if it was on the basis of an inadvertent error on part of the employer. Further, the Tribunal held that the there was no misrepresentation or any act of omission or commission on part of the employees.

While Resignation From Service Is A Bilateral Act, Request For Resignation From Service Should Be Promptly Addressed By Management: Central Administrative Tribunal Cuttack

Case Title: Bhupendra Singh vs Union of India and Others.

Case Number: Union of India

The Central Administrative Tribunal Cuttack division bench of Sudhi Ranjan Mishra (Judicial Member) and Pramod Kumar Das (Administrative Member) held that while resignation from service is a bilateral act and is subject to acceptance by the employer, the resignation request should be promptly addressed by the Management.

The bench noted that the applicant submitted his request for resignation from service on 08.07.2014 but the Director of Intelligence Bureau & Joint Director, Subsidiary Intelligence Bureau declined the same vide letter dated 04.03.2015.

Removal From Service For Unauthorized Absence Is Excessively Harsh Punishment: Central Administrative Tribunal, Allahabad

Case Title: Ajay Kumar vs Union of India and Ors.

Case Number: Original Application No. 452 of 2021

The Central Administrative Tribunal, Allahabad bench of Justice Om Prakash (Judicial Member) and Mohan Pyare (Administrative Member) held that removal from service for unauthorized absence is an excessively harsh punishment.

It was held that generally, courts and tribunals do not intervene in disciplinary matters by way of judicial review. However, interference in the quantum of punishment is confined to exceptional cases where the punishment is shockingly disproportionate to the proven charges.

Payment Of Salary Or Pension Is Unexceptionable, Is Integral Aspect Of Article 21 & Article 300A Of Employees Or Ex-Employees: Central Administrative Tribunal Cuttack

Case Title: Shushil Kumar Senapati vs Union of India and Ors.

Case Number: O.A.No. 260/00336 of 2020

The Central Administrative Tribunal Cuttack bench of Sudhi Ranjan Mishra (Judicial Member) and Pramod Kumar Das (Administrative Member) held that the payment of salaries and/or pension is unexceptionable. Salaries represent compensation for services rendered by employees and are thus rightfully due to them. The Tribunal emphasized that the entitlement of an employee or former employee to their salary or pension constitutes an integral aspect of their fundamental rights, including the right to life under Article 21 and the right to property under Article 300 A of the Constitution.

Domain Of Department To See Where, When, And How Its Employee Can Be Posted, Judicial Review Of Transfers Is Limited: Central Administrative Tribunal Ahmedabad

Case Title: Shri Gajendra Meena vs. Union of India and Ors.

Case Number: O.A.224/2023

The Central Administrative Tribunal Ahmedabad bench of Umesh Gajankush (Judicial Member) held that it is the domain of the employer/department to see where, when, and how its employee can be posted. The bench held that judicial review of transfers is limited and can only be contested on grounds of incompetency or malfeasance.

Immediate Financial Hardship' Faced By Family Is Guiding Principle For Offering Compassionate Appointment: New Delhi Central Administrative Tribunal

Case Title: Kishore Dhakate Vs Secretary, Department Of Agriculture & Cooperation And Ors.

Case Number: O.A. No. 601/2020

The Central Administrative Tribunal Principal Bench, New Delhi bench of Dr. Chhabilendra Roul (Administrative Member) held that the primary criterion for granting compassionate appointment to the eligible member of a deceased government employee's family is the “immediate financial hardship” faced by the family.

The bench held that the mere passage of time or the fact that a family member is still pursuing education to enhance their qualifications does not meet the fundamental requirement of "immediate financial penury."

Payment Of Gratuity Act, 1972 Has An Overriding Effect On CCS Pension Rules, 1972: Central Administrative Tribunal, New Delhi

Case Title: Johri Mal vs Union of India and Anr

Case Number: O.A. No. 2266/2021

The Central Administrative Tribunal Principal Bench, New Delhi bench of Pratima K. Gupta (Judicial Member) held that the Payment of Gratuity Act, 1972, being an act of Parliament will have an overriding effect on the CCS Pension Rules, 1972.

The CCS Pension Rules, 1972, refer to the Central Civil Services (Pension) Rules, which outline the provisions for the pension and retirement benefits for government employees who are covered under the Central Civil Services.

Tribunal Has Right To Quash And Set Aside Disciplinary Authority's Orders If They Contravene Settled Principles Of Law Or Principles Of Natural Justice: Jodhpur Central Administrative Tribunal

Case Title: Naresh Kumar Ramawat vs Union of India and ors.

Case Number: Original Application No. 354/2014

The Central Administrative Tribunal Jodhpur bench of Justice Rameshwar Vyas and Dr. Amit Sahai held that it may not serve as an appellate authority over decisions made by other appellate bodies but it possesses the authority to annul and invalidate disciplinary orders issued by the disciplinary authority if they contravene well-settled principles of law and violate the principles of natural justice.

Government Employee Can't Be Denied Notional Increment Merely Because They Retired On Last Day of June And Not On 1st July: Allahabad Central Administrative Tribunal

Case Title: Jai Singh and others vs Union of India and others.

Case Number: Original Application No. 49 of 2024

The Central Administrative Tribunal, Allahabad bench of Justice Om Prakash held that the employees are entitled to one annual increment earned on the last day of their service. The bench held that since the applicants retired on the last of June, they were entitled one notional increment due and cannot be denied increment merely because they retired the next day of earning it.

A notional increment refers to an imaginary or hypothetical increase in salary or benefits that an employee would have received if certain conditions were met. In the context of government service or employment, it typically refers to the grant of an increment or raise in salary that an employee would have been entitled to if they had continued in service for a specific period. An annual increment in salary or benefits often becomes due on a specific date each year, typically the anniversary of an employee's joining date or the start of a fiscal or calendar year.

Management Under Obligation To Give Reasoned Order While Considering Regularization Of Services: Central Administrative Tribunal, Kolkata

Case Title: Karu Mehra vs Union of India and Others

Case No.: O.A. No. 350/337/2022

The Central Administrative Tribunal, Kolkata division bench of Mr Anindo Manjumdar (Administrative Member) and Mr Rajnish Kumar Rai (Member) held that the Management should not dismiss the Workman's case for regularization summarily and must give a reasoned and speaking order after considering the relevant circulars and principles established by the Supreme Court.

The Terms And Conditions Can't Be Challenged After Appearing In Exams And When The Results Are Declared: CAT Allahabad

Case Title: Bagda Ram vs Union of India and Ors.

Case Number: OA No. 330/109 of 2011

The Central Administrative Tribunal Allahabad bench of Justice Rajiv Joshi (Judicial Member) and Dr. Sanjiv Kumar (Administrative Member) held that once the terms and conditions of the advertisement/notification have been accepted by the candidate, it cannot be challenged after appearing in the examination and when the results have been declared.

Further, it held that the candidate who participated in the selection process cannot challenge the validity of the selection process after appearing in the said selection process and taking the opportunity of being selected.

Compassionate Appointment Is Not An Absolute Right, It Aims To Remedy Only The Sudden Crisis Faced By a Deceased Employee's Family: CAT, Allahabad

Case Title: Ankur Lal vs Union of India and Anr.

Case No.: Original Application No. 717 of 2015

The Central Administrative Tribunal, Allahabad single bench of Justice Om Prakash (Judicial Member) held that compassionate appointment is not an absolute right and is given to family members of the deceased employee to overcome 'sudden' crisis.

President's Power Of Review Under Rule 29(A) Of CCS (CCA) Rules 1965 Is Of A Revisionary Nature And Not Of A a Nature Of Reviewing One's Own Order: CAT Cuttack

Case Title: Bijay Kumar Barik vs Union of India and Ors.

Case Number: OA No. 62 of 2019.

The Central Administrative Tribunal Cuttack bench of Sudhi Ranjan Mishra (Judicial Member) and Pramod Kumar Das (Administrative Member) held that under Rule 29 (A) of CCS (CCA) Rules 1965 the President has the power to review any order under the CCS (CCA) Rules, 1965 including an order of exoneration. It held that the power of review of the President is in the nature of revisionary power and not in the nature of reviewing one's own order.

Statement In A Preliminary Enquiry Cannot Be Considered If Witnesses Are Not Examined In A Regular Enquiry: CAT Allahabad

Case Title: Nawab Bind vs Union of India and Ors.

Case Number: Original Application No. 330/00406/2013

The Central Administrative Tribunal Allahabad bench of Justice Om Prakash (Judicial Member) and Mohan Pyare (Administrative Member) held that if witnesses have not been examined in the regular enquiry, their earlier statement recorded during the preliminary enquiry cannot be taken into consideration.

Disciplinary Authority Is Obligated To Follow Rules And Principles Of Natural Justice, Not Only Justice Is Done But Manifestly Seen To Be Done: CAT Cuttack

Case Title: Biswa Nath Parida vs Union of India and Ors.

Case Number: OA 260/00541 of 2019

TheCentral Administrative TribunalCuttack bench of Sudhi Ranjan Mishra (Judicial Member) and Pramod Kumar Das (Administrative Member) held that enquiry proceedings cannot be conducted with the closed mind. It held that the rules of natural justice are required to be observed to ensure not only that justice is done but it is manifestly seen to be done.

The Tribunal held that:

“This Tribunal is also remanded by the legal maxim quod contra legem fit, pro infecto habetur means what is done contrary to law is considered as not done is a well accepted principle commonly applied to all proceedings. It is also trite law that if a thing is to be done in a particular manner then it has to be done in that manner and not in any other manner. Further, the maxim sublato fundament cadit opus is a well recognized principle that if the foundation is removed, the superstructure will collapse. It is also well settled proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same.”