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Service Matters: Compilation Of High Court Judgments In 2022 [Part II]
LIVELAW NEWS NETWORK
12 Jan 2023 6:53 PM IST
![Service Matters: Compilation Of High Court Judgments In 2022 [Part II]](https://www.livelaw.in/h-upload/2023/01/12/750x450_453553-service-matters-compilation-of-high-court-judgments-in-2022.webp "Service Matters: Compilation Of High Court Judgments In 2022 [Part II]")
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here is a Digest on decisions relating to Service matters. This is the second of four parts of this Digest. First part here.101. If The Contract Is Extended By The Employer, It Cannot Be Allowed To Reduce The Period Of The Extension Retrospectively: Delhi High CourtCase Title: North...
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here is a Digest on decisions relating to Service matters. This is the second of four parts of this Digest. First part here.
Case Title: North Delhi Municipal Corporation v. IJM Corporation Berhad
Citation: 2022 LiveLaw (Del) 420
The High Court of Delhi has held that when the employer has granted the contractor an extension of time for a specified period, it cannot turn around to contend that the extension was only provisional and it is allowed to reassess or reduce the number of days by which the execution of the contract was executed.
The Single Bench of Justice Sanjiv Sachdeva has held that once the period of the contract has been extended by the employer, it cannot be allowed to retrospectively reduce the period of the extension.
Case Title: ANISH GUPTA v. UNION OF INDIA
Citation: 2022 LiveLaw (Del) 610
The Delhi High Court has observed that allowing Disciplinary Proceedings to continue ad infinitum would not only be highly prejudicial to an individual but is also destructive of the Rule of Law.
A division bench comprising of Justice Siddharth Mridul and Justice Anoop Kumar Mendiratta was dealing with cross petitions filed by one Anish Gupta against the Union of India.
Gupta was serving as Officer on Special Duty (Legal at the Central Board of Indirect Taxes and Customs), when he was suspended in August 2013. He was served with a Departmental Charge Sheet/ Memorandum of Charge pursuant to an incident of July, 2013. Admittedly, no criminal investigation or prosecution was ever initiated or contemplated against him.
CASE TITLE: MANJU DEVI v. HINDUSTAN PETROLEUM CORPORATION LTD
Citation: 2022 LiveLaw (Del) 707
The Delhi High Court has reiterated that an appointment on compassionate ground offered to the dependant of a deceased employee is a mere concession and not a right.
A single judge bench of Justice Chandra Dhari Singh observed, "The whole object behind granting compassionate employment is to enable the family to tide over the sudden crisis. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession and not a right."
The petitioner in this case was the wife of an en employee of Hindustan Petroleum Corporation Ltd who passed away while in service due to a Road accident. Through the petition, the petitioner sought compassionate employment for her son under the Rule 7(b)(ii)/8A of the HPCL Employee's Superannuation Benefit Fund Scheme, as per which she was entitled to the benefits as her deceased husband would have received had he superannuated.
Case Title: N.D. TYAGI v. POWER FINANCE CORPORATION LTD. & ORS.
Citation: 2022 LiveLaw (Del) 743
The Delhi High Court has observed that once the employee is sent back to his parent department, it is the competent disciplinary authority of the parent organisation which can issue a charge sheet against the misconduct even though it has taken place in the borrowing department.
A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad dismissed an appeal against a single judge order which had refused to grant relief to a man, employed as an Executive Director in the Power Finance Corporation Limited, challenging a chargesheet wherein he was proposed to be proceeded against in disciplinary action in accordance with the provisions made in Rules 28 and 30 of the Power Finance Corporation Limited (Conduct Discipline and Appeal) Rules.
CASE TITLE: DINESH KUMAR v. UNIVERSITY OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 766
The Delhi High Court has made it clear that a person appointed as a daily wager or on ad-hoc basis, who did not meet the qualification criteria and necessary certification, cannot as a matter of right claim to continue in such employment.
The single judge bench comprising Justice Chandra Dhari Singh observed, "Upon having perused the records of the case and having analysed the facts of the case at hand, it emerged that the petitioner did not meet the qualification criteria and necessary certification. Despite the opportunities granted, he failed to undergo the requisite professional or skill-based training and failed to furnish the certificate for the same. As such, an employee on daily wages or appointed on an ad-hoc basis, as a matter of right, cannot claim to be employed for a position to which one is ineligible."
Case Title: SGT. NAVNEET KUMAR SINGH (977823-F) v. UNION OF INDIA & ORS.
Citation: 2022 LiveLaw (Del) 813
The Delhi High Court has observed that issuance of Posting Order resulting in transfer, especially for all those pertaining to Armed Forces, is a necessary exigency of service which should not be interfered by a Court as the Armed Forces are the best judges to exercise their own discretion.
"Posting Order resulting in transfer, which is in the absence of a violation of any statutory requirements, rules, regulations or like or which is unless vitiated by some sort of bias or malafide or vindictiveness further do not call for any interference from Courts," a division bench comprising of Justice Suresh Kumar Kait and Justice Saurabh Banerjee added.
Title: DELHI TRANSPORT CORPORATION v. RUBY & ORS.
Citation: 2022 LiveLaw (Del) 919
Observing that Delhi Transport Corporation (DTC) is not expected to unleash "untrained and unlicensed drivers" on "unsuspecting innocent public", the Delhi High Court has observed that the public transport undertaking is required to check the antecedents of its prospective employees, particularly whether they possess a valid driving license.
Justice Gaurang Kanth said that having such license is the basic qualification for employment of drivers by a Government undertaking and it is expected that only after passing the special training, the selected candidates are offered employment.
The exercise of checking the validity of the driving license could be carried out even after offering provisional employment to the successful candidates, the court added.
Case Title: Paras Khuttan v. GAIL India Ltd. & Anr
Citation: 2022 LiveLaw (Del) 920
The Delhi High Court recently observed that once the employer has a right to terminate the probationer without issuing any notice and without granting any salary in lieu of notice, the same has to be made applicable to the probationer - when he wants to leave the job.
The court made the observation in an judgement allowing an appeal of a probationer. In the decision, the court referred to the GAIL (General Terms and Conditions of Service Rules) that are applicable to the Gas Authority of India Limited employees.
Title: IC-76585M MAJOR NISHANT KAUSHIK vs UNION OF INDIA AND ORS
Citation: 2022 LiveLaw (Del) 980
Months after a division bench of Delhi High Court said the jurisdiction of High Courts under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court, a co-ordinate bench has said that ordinarily, no appeal from a final decision or order of the Armed Forces Tribunal can lie before the High Court.
The division bench of Justice Suresh Kumar Kait and Justice Saurabh Banerjee said there is no provision under The Armed Forces Tribunal Act for an appeal against any such final decision or order of the AFT before any other forum like the High Courts.
"Further, as per Section 31 of the Act, such an appeal to the Apex Court shall lie within 30 days from the date of the said decision of the Tribunal with the leave of the Tribunal or the Apex Court, as the case may be," said the bench.
Title: PRAVEEN YADAV AND ORS. v. UNION OF INDIA AND ORS.
Citation: 2022 LiveLaw (Del) 1185
Questioning the Ministry of Home Affairs's decision to confine House Rent Allowance (HRA) benefit only to Personnel Below Officer Rank (PBORs), the Delhi High Court has said that every personnel in the paramilitary forces shall be entitled to the benefit irrespective of the rank, as per their entitlement.
A division bench of Justice Suresh Kumar Kait and Justice Saurabh Banerjee has directed the Centre and other authorities to take necessary steps within six weeks, in consultation with Ministry of Home Affairs as well as Ministry of Finance, to grant HRA benefit to such personnel.
"We are unable to find any reason as to why officers belonging to the rank of Officers / Coy Commanders or PBROs, should not be granted similar benefit more so as the factum of their serving at far off locations has been recognized and it cannot be differentiated on cadre basis. We fail to understand why such policy decisions discriminating within the force should be permitted to continue, especially to the officers of the force who spend their lives serving the nation," the court said.
Case Title: SYED MOHBUBUL MAJID v THE STATE OF ASSAM AND 5 ORS
Citation: 2022 LiveLaw (Gau) 32
The Gauhati High Court recently directed a Secondary Education Department to process the pensionary benefits of a person who was denied the same on the ground that he did not have the necessary qualification at the time of appointment.
Justice Achintya Malla Bujor Barua observed that there was no departmental enquiry into the same during his tenure and that the cause of action of the misconduct occurred in 1988.
"In the instant case, records reveal that neither there was any departmental proceeding nor the cause of action of the misconduct is within the period of four years from which a departmental proceeding can be initiated. Admittedly, the cause of action took place in the year 1988 itself when the petitioner entered service without having the necessary qualification. From such point of view, we are of the view that the pensionary benefits of the petitioner cannot be now withheld by invoking the proviso to Rule 21 of the Assam Services (Pension) Rules, 1969."
Case title - Pratima Deka vs The State Of Assam And 5 Ors
Citation: 2022 LiveLaw (Gau) 41
The Gauhati High Court has observed that in the Hindu religion, there is no concept of Bigamy and therefore, a second wife is not entitled to a family pension in the existence of the first wife.
The bench of Justice Sanjay Kumar Medhi observed thus in a case wherein Petitioner had moved the Court seeking family pension claiming herself to be the wife of one Biren Deka.
Case Title: GOLAP BISWAKARMA VERSUS THE UNION OF INDIA AND ORS.
Citation: 2022 LiveLaw (Gau) 49
The Gauhati High Court has held that the State cannot prematurely retire members of the Assam Rifles Battalion citing 'low medical categorisation' without following the procedure laid down by the statute applicable to the organization.
A single judge bench of Justice Michael Zothankhuma observed referred to the High Court's decision in Prodip Kumar Haloi vs. Union of India and others, where it was held that Rule 26 of the Assam Rifles Rules, 2010 would have to be followed prior to applying Rule 48 (1) (b) of the pension Rules/FR 56 (j), for prematurely retiring a Government Servant due to his low medical category.
114. Gauhati High Court Refuses To Stay Mobile Internet Restrictions During State Recruitment Exams
Case Title : RAJU PROSAD SARMA Vs. STATE OF ASSAM
Citation :2022 LiveLaw (Gau) 59
The Gauhati High Court rejected the prayer for interim orders in a plea challenging notification dated 18.08.2022 temporarily suspending mobile internet connectivity during State recruitment examination.
The impugned order was issued by the Principal Secretary to the Government of Assam, Home and Political Department, invoking the power conferred under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 read with Section 5(2) of the Indian Telegraph Act, 1885. It had mandated that, on 21.08.2022 and 28.08.2022, mobile internet services will remain suspended for 4 hours in 24 districts which had centres of written examination for filling up approximately 30,000 posts for Grade-III and Grade-IV services in different departments in the State. The measure was claimed to have been adopted to facilitate a free, fair and transparent conduct of the examination by curbing mobile phone-enabled cheating.
Case Title: Saidur Rahman v. The State of Assam & Ors.
Citation: 2022 LiveLaw (Gau) 13
Gauhati High Court has held that physically handicapped persons constitute a category in themselves. There can be no further classification amongst the members of that category on the basis of other considerations like caste, creed, religion etc.
While granting relief to the petitioner, who was excluded from the recruitment drive conducted by the Assam Government merely for the fact that he was a general category candidate with physical disability, the Single Judge Bench of Justice Suman Shyam held,
"…this Court is of the unhesitant opinion that having reserved four vacancies to be filled up by PWD candidates and having permitted the General Category candidates to participate in the recruitment process, there was no scope for the authorities to further reserve those four vacancies in PWD category to be filled up only by candidates belonging to OBC/ MOBC or ST(H) category."
Case Title: Smti. Protiva Devi v State of Assam & Ors.
Citation: 2022 LiveLaw (Gau) 33
While reiterating that the right to promotion is not a Fundamental Right, the Gauhati High Court has recently dismissed a petition filed by a Graduate Teacher challenging the vires of Rule 14(2) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 on grounds that she was not promoted to the position of the headmistress.
A division bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia relied on a judgement passed by the co-ordinate bench in Kripa Sindhu Das Vs. State of Assam & Ors it was held :
"The right to be considered for promotion is a fundamental right, while the right to promotion is (not) fundamental right. It was held that the right of the Assistant Head Master to be promoted to the post of Head Master is not denied or diminished as he still can be promoted to the post of Head Master by taking into account his seniority in the cadre of Graduate Teacher and therefore his chance of getting promoted to the post of Head Master is not lost."
The Bench after carefully perusing the said decision noted that the issue raised in this case had already been specifically dealt with and declared that it was in complete agreement with the views arrived at by the Co-ordinate Bench.
It was also noted that no averments or submissions were made by the parties herein that the cited decision required reconsideration either. Accordingly, finding no reasons to take a different view in the present proceedings, the plea was dismissed.
117. Gauhati High Court Upholds The Minimum Age For District Judges In Assam
Case Title: Pooja Agarwal V The State Of Assam And Anr
Citation: 2022 LiveLaw (Gau) 23
The Gauhati High Court recently upheld the minimum age limit for appointment of District Judges in Assam.
A division bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia held that the limitation on age has a rational and reasonable nexus with the Rules of Assam Judicial Service Rules of 2003, and said that the Rule 1 of Assam Judicial Service Rules of 2003 providing an age limit to grade-1 judicial officers is not arbitrary.
The petition was filed by a Pooja Agarwal challenged the constitutional validity of the Assam Judicial Service Rules, 2003 more particularly Rule 7, by which a minimum age of 35 years and a maximum age of 45 years has been prescribed as an essential qualification for appointment to Higher Judicial Service in Assam.
Case Title : Shri Jibon Kalita and Ors. v State of Assam and Ors.
Citation: 2022 LiveLaw (Gau) 36
The High Court of Gauhati recently directed the State government to issue appointment orders to all persons selected pursuant to their last employment advertisement, even though the government had recently issued new advertisement for the same vacancies.
Justice Michael Zothankhuma observed that :
"The amendment made to the Executive Instructions vide Notification dated 10.04.2018 has not been given any retrospective effect and as such, the doing away with the selection process that has been completed prior to the Notification dated 10.04.2018 is patently unfair and unreasonable."
119. Gauhati High Court Upholds IOCL Law Officer Appointment Through CLAT-PG Rankings
Case Title : ARIF AHMED v THE UNION OF INDIA AND 3 ORS
Citation: 2022 LiveLaw (Gau) 54
The Gauhati High Court has upheld an advertisement issued by the Indian Oil Corporation last month for filling up posts of Senior Law Officer through CLAT-PG rankings.
A single judge bench of Justice Michael Zothankhuma stated that an employer would know best the type of candidate they require and there is no discrimination or arbitrariness in the employer prescribing the essential qualifications required of a candidate.
Case Title: Saidur Rahman v. The State of Assam & Ors.
Citation: 2022 LiveLaw (Gau) 13
Gauhati High Court has held that physically handicapped persons constitute a category in themselves. There can be no further classification amongst the members of that category on the basis of other considerations like caste, creed, religion etc.
While granting relief to the petitioner, who was excluded from the recruitment drive conducted by the Assam Government merely for the fact that he was a general category candidate with physical disability, the Single Judge Bench of Justice Suman Shyam held,
"…this Court is of the unhesitant opinion that having reserved four vacancies to be filled up by PWD candidates and having permitted the General Category candidates to participate in the recruitment process, there was no scope for the authorities to further reserve those four vacancies in PWD category to be filled up only by candidates belonging to OBC/ MOBC or ST(H) category."
Case Title: Ineos Styrolution India Limited vs Shaileshbhai Manibhai Patel
Citation: 2022 LiveLaw (Guj) 7
Upholding the decision of the Single Judge Bench, the Bench comprising Justice Vora and Justice Mayee has affirmed that under Section 17(B)of the Industrial Disputes Act, 1947 ('ID Act'), the workman is entitled to payment of full wages last drawn by him during the pendency of the proceedings in the High Court and not from the date of filing of affidavit as contended by the Appellant-Company.
Case Title: State of Gujarat v. PWD & ForestEmployees Union
Citation: 2022 LiveLaw (Guj) 9
The Gujarat High Court recently held that the benefits flowing from a Resolution applicable to the State Government employees cannotbe automatically claimed by the employees of the autonomous body.
The bench comprising Justice A. P. Thaker and JusticeN.V. Anjaria discarded the plea of discrimination asserted by the employees of Gujarat State Forest Development Corporation insofar as they were denied the benefit of a Resolution of the Public Works Department of the Government of Gujarat, whereby scheme was launched for the daily wagers working in the departments of the Government and under which the daily wagers came to be granted the benefits depending upon the completion of their service.
Case Title: MINAKSHIBEN LAXMANBHAI PARALIYA Versus STATEOF GUJARAT
Citation: 2022 LiveLaw (Guj) 33
An order of termination referring to the FIR and case filed against the employee without conducting full departmental inquiry is bound to be stigmatic, the Gujarat High Court has observed today. The Bench comprising Justice Biren Vaishnav made this observation in a petition under Article 226 challenging the communication which terminated the services of the Petitioner.Accordingly, the Bench quashed and set aside the aforesaid communication.
124. Employee Cannot Be Terminated Without Full Departmental Inquiry: Gujarat High Court
Case Title: DINESHBHAI DHUDABHAI PATEL Versus STATE OF GUJARAT and ORS
Citation: 2022 LiveLaw (Guj) 38
Gujarat High Court Bench comprising Justice Biren Vaishnav while allowing the Petition challenging the order terminating the Petitioner's services has observed as follows;
"The employer is not allowed to hire and fire even if the employee, maybe ad hoc or probationer, and the services cannot be given a go-bye by one stroke of pen on the ground of misconduct by casting stigma, without holding a regular inquiry in accordance with the principles of natural justice."
Case Title: MAHESHBHAI BHURJIBHAI DAMOR Versus STATE OF GUJARAT & 3 other(s)
Case Citation: 2022 LiveLaw (Guj) 52
The Gujarat High Court has recently affirmed that in dispensing with departmental inquiry, the authority must arrive at a satisfaction that it is not reasonably practicable to follow the procedure andit must record reason to show that such satisfaction is arrived at on objective facts and not on whims and caprice.
Further, Justice Sangeeta Vishen observed that parties concerned will be put in an embarrassing position cannot be a ground to dispense with the inquiry.
Case Title: PARULBEN NATWARLAL PATEL Versus STATE OF GUJARAT
Case Citation: 2022 LiveLaw (Guj) 53
"When a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in terms and conditions of the advertisement unless such a power is reserved," the Gujarat High Court held recently.
The Bench comprising Justice Biren Vaishnav made this observation in a Special Civil Application filed by one Parulben Patel, seeking appointment to the post of Live-Stock Inspector (Class III), and that the requirement for having 10th class certificate in English be relaxed.
Case Title: SOLANKI VIPULKUMAR VIRABHAI Versus INSTITUTEOF BANKING PERSONNEL SECTION (IBPS)
Citation: 2022 LiveLaw (Guj) 55
"The provisions of the 2016 (Rights of Person withDisability) Act do not envisage a situation to give appointment to a person in absence of any vacancy in the category," the Gujarat High Court has held.
Justice Biren Vaishnav observed so while hearing a writ petition under Article 226 of the Constitution, wherein the Petitioner, a visually impaired candidate, was aggrieved by non-appointment to the Saurashtra Gramin Bank, for the reason that no vacancy for visually impaired (VI) category was requisitioned.
Case Title: DINESH SHARAN THAKUR Versus DR. M K SHAHMEDICAL COLLEGE AND RESEARCH CENTRE
Case Citation: 2022 LiveLaw (Guj) 56
The Gujarat High Court has recently affirmed that merely appointing more experienced or senior candidates to an administrative post cannot be said to be stigmatic to the predecessor.
In saying so, the Bench comprising Justice Biren Vaishnav has dismissed the Petition filed by the petitioner, former HOD (Anesthesia) at a medical college, challenging his removal and appointment of rather senior candidate.
129. Can't Permit Correction Of Purported Mistake In Appointment At Belated Stage: Gujarat High Court
Case Title: KIRITKUMAR RAVJIBHAI SHARMA VersusPRINCIPAL/TRUSTEE SARASWATI KADAVNI MANDAL
Case Citation: 2022 LiveLaw (Guj) 58
The Gujarat High Court has recently held that a purported mistake in appointment of a candidate, in this case as an Assistant Teacher, cannot be rectified by the authorities at a belated stage. The Court cited a lapse of four and half years since petitioner's appointment in this case, to set aside the State's order terminating his services.
Justice Biren Vaishnav held,
"taking a stand four and half years after his appointment was certainly a case correcting a mistake belatedly...even if it isa mistake it was not open for the authorities to so rectify it after four andhalf years of the petitioner having been appointed to the post."
Case Title: RAGHUVERSINH CHANDRASINH SARVAIYAVersus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 71
"While conferring benefits viz. pensionary benefits, calculation of the entire service rendered even prior to the benefit of the regular pay scale being conferred needs to be considered for the purpose of awarding pensionary benefits (from the date of initial appointment as a daily wager)," the High Court affirmed in reference to Section 25B of theIndustrial Disputes Act.
The Bench comprising Justice Biren Vaishnav was hearing a Special Civil Application under Article 226 wherein the Petitioner sought direction to Respondent Authorities to consider him as permanent workman and clear arrears of monthly wages, revision of 6th and 7th PayCommission pay-scale benefits along with 12% simple interest per annum.
Case Title: Chandubhai Punjabhai Talpada v.Deputy Executive Engineer
Case Citation: 2022 LiveLaw (Guj) 77
The High Court has affirmed the order of the Labour Court determining that the Petitioner-workman was not entitled to reinstatement on the ground that there was discrepancy in his deposition and the documents produced by him.
The Petitioner herein had claimed that he had joined the services of the Respondent in 1983 and was performing the duties of the labourer/table work as a daily wager. Since he possessed educational qualifications, he was also given office table work. However, it was alleged by him that he was terminated orally in September 1988 without due process under the Industrial Disputes Act 1947. Aggrieved, he approached the Labour Court which dismissed his application in December 2007.
Case Title: Kabindra Satyanarayan Singh v. State of Gujarat thru The Addl. Chief Secretary
Citation: 2022 LiveLaw (Guj) 78
The Gujarat High Court has directed the State authorities to consider regularizing the services of Petitioner-employees, working on contractual basis on interceptor boats for coastal security in the State's HomeDepartment since over 11 years.
The Bench comprising Justice Biren Vaishnav noted that the Petitioners had been recruited, albeit, on a contractual basis, after a public advertisement and a duly constituted selection committee consisting of the Additional Secretary, Law & Order, Director of Sainik Welfare Board, a representative each of the police, navy and coats guard respectively and a Jilla Sainik Kalyan Officer.
Case Title: Chauhan Mahmadrafik Abdul LatifVersus Oil And Natural Gas Corporation Limited Through Authorized Person
Citation: 2022 LiveLaw (Guj) 89
The Gujarat High Court has imposed a fine of INR 50,000 onOil and Natural Gas Corporation Limited while holding as follows;
"since it prima facie appears that the exclusion of the petitioner was not by an accident and further, in any case, the respondent organization, more particularly, being a Public Sector Undertaking under theGovernment of India was required to act fairly, more particularly, while considering the candidature of an Ex-Servicemen candidate, which the respondents have not done, hence this is a fit case for imposition of costs.Thus, costs quantified at Rs. 50,000/- (fifty thousand) is also directed to be paid by the respondents to the present petitioner."
Case Title: Ramsingbhai Saburbhai Patel vs StateOf Gujarat
Case No.: 2022 LiveLaw (Guj) 92
The Gujarat High Court has recently quashed and set aside the order of termination of an employee, who was convicted for corruption, on the ground that he was neither given a show cause notice before such termination nor an opportunity to explain his case.
The Bench comprising Justice Biren Vaishnav directed the employer to reinstate the employee to his original post along with consequential benefits and back wages. However, liberty is granted to pass appropriate order afresh in accordance with law after giving an opportunity of hearing to the petitioner and considering the reply which may be filed.
Case Title: Harkishanbhai Dahyabhai Lad vs StateOf Gujarat
Citation: 2022 LiveLaw (Guj) 106
The Gujarat High Court has held that past services of the daily-wagers where they have completed 240 days of continuous service as per Section 25B of the Industrial Disputes Act, would qualify for pension.
Justice Biren Vaishnav, heavily relying on the case of Executive Engineer, Panchayat v. Samudabhai Jyotibhai Phedi, held,
"for counting the period for purposes of pension, the date of initial appointment needs to be taken into consideration and for the purposes of taking initial date of appointment those years in which the petitioners have completed 240 days have to be counted for the purposes of pension."
Case Title: Botad Taluka Sahkari Kharid ... vs Bhagirathbhai Kanubhai Khachar
Citation: 2022 LiveLaw (Guj) 120
The High Court has recently granted relief to a workman who was terminated from his services via an oral communication, in violation of mandatory provisions pertaining to retrenchment under Sections 25F and 25G of the Industrial Disputes Act, 1947.
Justice Vipul Pancholi ordered that the aggrieved workman be paid Rs.2,50,000/- towards lump-sum compensation toRespondent No.1-Workman, in lieu of reinstatement with continuity of service and 20% back-wages.
Case Title: Hiren Dahyabhai Rathod vs State OfGujarat
Citation: 2022 LiveLaw (Guj) 128
The High Court quashed and set aside theorder of termination issued against the Petitioner, sans any inquiry, merely on the basis of a FIR registered against him under the Prevention of Corruption Act.
It directed that the Petitioner be reinstated however, it refused to grant back-wages considering the principle of no work, no pay, as also applied by a Division Bench in similar facts in State of Gujarat vs ChetanJayantilal Rajgor.
Case Title: Maheshbhai Govindbhai Patel vsMother Dairy Fruit And Vegetable Pvt Ltd
Case Citation: 2022 LiveLaw (Guj) 131
The Gujarat High Court has reiterated that when a LabourCourt directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court, the employer is be liable to pay such workman during the period of pendency of such proceedings in the HighCourt.
Referring to Section 17B of the Industrial Disputes Act, theBench comprising Justice RM Chhaya and Justice Hemant Prachchhak observed,
"Section 17B of the Act clearly provides that when the Labour Court directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court, the employer shall be liable to pay such workman "during the period of pendency of such proceedings in the High Court full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period."
Case Title: Priteshkumar Bipinbhai Dave vs State OfGujarat
Citation: 2022 LiveLaw (Guj) 133
The Gujarat High Court has directed its administrative department to grant appointment to the Petitioner, a physically challenged candidate, who had applied for the post of Peon (Class IV) under the Physically Handicapped category.
The Bench comprising Justice Biren Vaishnav considered that two vacancies had arisen before the expiry of the waitlist in whichPetitioner's name figured at serial number 67, however, the appointment could not be made since the Recruitment Cell was not informed about the same in due time.
Case Title: Sardar Patel Seva Trust Versus TheRegional Provident Fund Commissioner II
Citation: 2022 LiveLaw (Guj) 134
The Gujarat High Court has restrained the Regional ProvidentFund Commissioner from initiating recovery proceedings against an employer under Section 8(B) and 8(G) of the Employee's Provident Fund and Miscellaneous Act, 1952, citing non availability of the Central Government Industrial Tribunal,Ahmedabad.
The Bench comprising Justice Biren Vaishnav stated that in the absence of a Presiding Officer at the Tribunal, the appeal filed by the employer against recovery order could not be heard.
141. Interest On Delayed Payment Of Gratuity Mandatory, Not Discretionary: Gujarat High Court Reiterates
Case Title: Ashvinkumar Ramniklal Jani Versus State Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 142
The High Court has reiterated that there is a clear mandate on the employer under the provisions of Section 7 to the Payment of Gratuity Act, for payment of gratuity within time and to pay interest on the delayed payment of gratuity.
In light of the above, the Bench of Justice BirenVaishnav directed the Sardar Patel University to pay Rs. 10 lakhs towards gratuity of the Petitioner, a retired reader, along with interest at 9%for wrongfully withholding the gratuity since his retirement in 2013.
Case Title: STATE OF GUJARAT Versus ARJANBHAITITABHAI BARAIYA
Citation: 2022 LiveLaw (Guj) 147
Affirming the view that regularly selected employees cannot be continued for long on contractual, adhoc or temporary basis and that they ought to be regularised, the High Court came to the rescue of an AssistantEngineer who was appointed in the aftermath of 2001 Gujarat Earthquake.
A Bench comprising Justice RM Chhaya and JusticeHemant Prachchhak upheld the order of a single judge directing theRevenue Department and Urban Development & Urban Housing Department of theState Government to "positively consider" the request for regularisation.
Case Title: Rameshbhai Dalsangbhai Kuniya VersusState Of Gujarat
Citation: 2022 LiveLaw (Guj) 151
The High Court CAME to the aid of some Forest Guards, who were denied the benefit of past service on the basis of an undertaking given by them that they have no objection of losing seniority for enabling their transfer.
The Petitioners had challenged a resolution that provided for a policy of considering the period of five years of the incumbents who were appointed on a fixed pay for the purposes of seniority, promotion, higher pay scale and terminal benefits from their initial date of engagement and not from the date of their regularization
Case Title: Harshad D Santoki S/O Devjibhai Versus StateOf Gujarat
Citation: 2022 LiveLaw (Guj) 161
In a major relief to an Assistant Professor at theIndustrial Engineering Department of LE College, Morbi, the Gujarat High Court has directed the respondent authorities to grant him an Academic Grade Pay(AGP) of Rs. 8,000 from 2010 onwards and consequential benefits of INR 9,000from 2013.
Justice Vaishnav noted that except for certain adverse remarks from 2009-10, there were no adverse remarks against thePetitioner in the 19 years of service that he had rendered. The issue of unauthorised pay was an aspect of penalty even as the other remarks regarding his ability to decisions or lack of initiative were not so grave so as to deprive him of the AGP. The High Court remarked:
"For these two purported adverse instances the financial loss that has occurred to the petitioner is denial of AGPs consequentially based on the communication of 2019."
Case Title: Jaydev Mulubhai Jaju vs State OfGujarat
Citation: 2022 LiveLaw (Guj) 177
The High Court has permitted a person claiming to be from the Scheduled Tribe community, to be provisionally appointed to the post ofSales Tax Inspector Class III, pending scrutiny of the caste certificate produced by him.
Justice Biren Vaishnav directed that such an appointment will be subjected to the result of the Scrutiny Committee. If the certificate produced by the Petitioner is proved to be disingenuous, thePetitioner would not be entitled to the benefit of being in provisional service. Per contra, if the certificate of the Petitioner is found to be genuine, it will be open for the Petitioner to claim his actual appointment along with continuity of service and other benefits.
146. Gujarat HC Affirms Regularisation Of Sweeper Working Around 8 Hours A Day For Over 30Years
Case Title : State Of Gujarat V Saurashtra Majur Mahajan Sangh
Case Citation: 2022 LiveLaw (Guj) 186
Justice Biren Vaishnav affirmed the order of theIndustrial Tribunal which directed the Petitioner-State authorities to regularise the position of a sweeper who had been working for over four hours everyday for the past thirty years. The Tribunal had directed that the State also remit all the arrears from the date of reinstatement given the length of the worker's tenure.
Case Title: Darshan Bipinbhai Trivedi VersusState Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 188
The Gujarat High Court has made it clear that the Assistant Director of Information (Journalism) Class II Recruitment Rules, 2015 nowhere stipulate that Journalism experience necessarily has to be from a government organization for appointment to the post of Assistant Director of Information (Journalism) Class II.
"Nowhere does Recruitment Rule stipulate that it has to be in only a government or local body or a government undertaking board or the Corporation or a Company. This would amount to restrictive reading of the Rule and, therefore, it cannot be said that the respondent No.3 does not possess the requisite experience," Justice Biren Vaishnav observed.
Case Title: Mehulkumar Ramanlal Katpara VersusState Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 189
Ensuring that no discrimination is borne by Multi-PurposeHealth Workers (Male), the High Court held that they shall be entitled to regular pay scale from their original date of appointment and consequential benefits which were paid to similarly situated employees way back in the year2011 and 2016.
Justice Biren Vaishnav referred to previous orders of the High Court by wherein Multi-Purpose Health Workers were regularised while observing:
"Multi Purpose Health Worker (Male) who have worked continuously for so many years cannot be discriminated by taking one excuse or the other. There is no rationale in discriminating the present petitioners by treating them as employees on contractual basis when initial contract for which they were appointed is over after 11 months and thereafter, without any break, they are continued for all these years. This is particularly so, when clear cut finding has been recorded by co-ordinate Bench of this Court in Special CivilApplication No.6289 of 2011 and respondents were party in these proceedings."
Case title - Nirmal Jagmohan Sharma Versus HighCourt Of Gujarat & 1 Other(S)
Citation: 2022 LiveLaw (Guj) 195
Citing the limited scope of judicial review with Courts to interfere with stipulations in recruitment advertisements which is the exclusive domain of the executive authority, the Gujarat High Court has dismissed the petition filed by a Civil Judge from Rajasthan seeking the appointment to the post of Civil Judge in Gujarat.
Case Title: Rajnibhai Ranchoodbhai Patel V/SGandhinagar Jilla Sahakari Kharid Vechan Sangh Limited
Citation: 2022 LiveLaw (Guj) 198
Concluding that the medical store where the Petitioner, a pharmacist, was employed had closed down and the Respondent Sangh did not own or exercise control over the store anymore, the High Court has found the termination of the Petitioner to be in accordance with law and refused to interfere with his retrenchment.
Significantly, the Bench comprising Justice Aniruddha Mayee noted that the Petitioner had accepted certain amounts as legal dues and other terminal benefits without objection. Hence, the Bench refused to hold the Petitioner's termination as illegal.
Case Title : Jatinkumar Kishorkumar Bhatt VersusState Of Gujarat
Citation: 2022 LiveLaw (Guj) 202
The High Court held that a reserved category meritorious candidate should be allowed to merge in the class of unreserved category because of his own merits, as depriving such candidate from securing a birth in the unreserved category results into communally dividing a homogeneous class of meritorious candidates.
In this case, an advertisement for the post of Sub-Inspector, Class III was issued by the Recruitment Board inviting online applications for a total of 1,382 posts to be filled in. The petitioners are candidates who took the preliminary examination and aspire to appear for the main examination.
Case Title : Bhupendra Aatmaramdas Patel v.State of Gujarat| C/SCA/7676/2017| 10 June 2022
Citation: 2022 LiveLaw (Guj) 204
Justice Bhargav D. Karia of the High Court has held that in case of voluntary retirement from service, if the appointing authority does not permit or refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
In this case, the petitioner was appointed for the post ofDeputy Engineer at Hemchandracharya North Gujarat University in 1992. He served a notice for voluntary retirement in 2013 upon the University on completion of 20 years of qualifying service. In the said letter the petitioner stated that the petitioner would retire voluntarily w.e.f. 06.01.2014. TheRespondent-University did not issue any intimation with regard to any order rejecting or accepting the voluntary retirement of the petitioner. It is the case of the petitioner that as per Rule 48 of the Gujarat Civil Service (Pension) Rules, 2002, the petitioner is deemed to have retired on 06.01.2014 on expiry of the three months' notice period.
Case Title: Chairman And Managing Director Union Bank OfIndia & 1 V/S Jaykant R Gohil Chairman And Managing Director Union Bank OfIndia & 1
Citation: 2022 LiveLaw (Guj) 207
The High Court came to the rescue of a retired BranchManager, accused by the employer-bank of causing it monetary loss byhaphazardly sanctioning loans, and ordered the latter to clear the former'sretiral dues.
Justice Biren Vaishnav observed that the orderforfeiting the Respondent-employee's gratuity was an "afterthought"as the same was issued only after the penalty of dismissal was modified tocompulsory retirement and after the respondent approached the bank seeking paymentof gratuity.
Case Title: Amrishbhai Natubhai Patel V/S StateOf Gujarat & 2 Other(S)
Citation: 2022 LiveLaw (Guj) 222
The Gujarat High Court has made it clear that when the service of an employee is dismissed in culmination of disciplinary inquiry on account of misconduct, the plea moved by him for regularization of the period of suspension cannot be considered in isolation.
It added that since the Petitioner had challenged the dismissal before the High Court, the two proceedings will go hand in hand.
"The Court is not inclined to entertain this petition as the claim of the petitioner with regards to the regularization of the period of suspension as prayed for now before this Court, cannot be examined in isolation, pending the challenge to the order of dismissal which the petitioner has already made in a separate petition," Justice AY Kogje said.
Case Title : Bhalodiya Ravikumar Jaynatilal Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 226
A single judge bench of the Gujarat High Court consisting of Justice Biren Vaishnav held that delay in appointment, when entirely attributable to the employer and caused due to no fault of the candidate could not be allowed to result in a delayed promotion for the said candidate.
Briefly, the facts of this case are that the Gujarat Panchayat Services Selection Board issued an advertisement for recruitment to the post of Multi-Purpose Health Worker (Male). The petitioner applied for the same online. He was placed at Serial No. 677, as his written test marks were 55.80 and he got additional 2.79 marks for sports, making his total 58.59.
Case Title: Sadbhav Engineering Limited V/S Ghanshyambhai B Pandya & 1 Other(S)
Citation: 2022 LiveLaw (Guj) 228
The Gujarat High Court has made it clear that Section 33C of the Industrial Disputes Act, 1947, is for the purpose of execution of the award or dealing with the pre-existing right or benefit arising out of the settlement of a workman against his employer. The same does not make way for a LabourCourt to enter into an adjudicatory process, giving a finding on disputed facts between the parties.
The Bench comprising Justice AY Kogje was hearing a challenge to a Labour Court's order directing thePetitioner-organisation to pay full wages to the respondent-workman from2006-2013.
Case Title: Gemalbhai Motibhai Solanki V/S Deputy Executive Engineer
Citation: 2022 LiveLaw (Guj) 235
The Gujarat High Court has said that where the service of a workman is terminated in violation of the procedure for Retrenchment & Re-Employment provided under Sections 25(G) and 25(H) of the IndustrialDisputes Act, an order of reinstatement ought to follow.
Holding thus, Justice Biren Vaishnav set aside the order of the Labour Court which granted back wages worth Rs. 72,000 to the terminated workmen, and directed their reinstatement in service, with continuity of service. It said,
"Compensation in lieu of reinstatement will be detrimental to the petitioners who have worked for over a period of 20 years."
Case Title: Darul Ullunarabiyyah Islamiyyah V/SMaulavi Mahmrudul Hasan & 1 Other(S)
Citation: 2022 LiveLaw (Guj) 236
The Gujarat High Court has held that an institution registered under the Wakf Board, indulging in commercial activities such as printing magazines apart from imparting religious education, is an 'industry' for the purposes of the Industrial Disputes Act.
It added that a 'Maulvi' who is entrusted with the management of such commercial activity, in the present case managing all the printing material, etc., is a 'workman' under the Act and thus, the provisions under the Act relating to termination of service will be attracted.
159. Bank Can't Attach Customer's PPF Account For Settlement Of His Debt/ Liability: Gujarat High Court
Case Title: Rajnikant Punjalal Shah Karta OfRajnikant Punjalal Shah V/S Manager, Bank Of Baroda
Citation: 2022 LiveLaw (Guj) 246
The High Court reiterated the settled proposition of law that the amount of Public Provident Fund account shall not be liable to any attachment in respect of any debt or liability incurred by the account holder.
The Bench comprising Justice AS Supehia was hearing the case of a Petitioner who had invested Hindu Undivided Family's money under Centre's Public Provident Fund Scheme with the Respondent-Bank ofBaroda.
Case Title: Jayantibhai Bahecharbhai Patel V/SState Of Gujarat
Citation: 2022 LiveLaw (Guj) 247
Finding itself in agreement with other High Courts across the country, the High Court held that the increment earned by an employee( government servant) for the past period of service cannot be denied merely because the said employee had retired when the increment became payable.
Justice Biren Vaishnav concurred with the DelhiHigh Court that when increment was earned for past period, its denial on the ground that on the date when the increment became payable the government servant was not holding the post as he had retired, was not valid.
Case Title: chief officer v/s decd. Shreesolanki kanubhai danabhai through legal heirs manjulaben w/o kanubhai solanki
Citation: 2022 LiveLaw (Guj) 254
The High Court has upheld the power of municipalities under the Gujarat Municipalities Act and the Rules framed thereunder to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months notice.
A bench of Justice Biren Vaishnav observed,
"It was within the powers of the municipality in exercise of powers under Sec.271 to frame rules. Proviso to Rule 5 indicates that the action can be taken by a municipality against an employee where employee reaches the age of superannuation. This, of course, is subject to he being given three months notice and notice pay in lieu thereof."
Case Title: Narendrasinh Dosabhai Gohil V/SManaging Director & 2 Other(S)
Citation: 2022 LiveLaw (Guj) 265
The Gujarat High Court has dismissed the petition filed byan employee seeking that his period of suspension be treated as 'regular' on the ground that the Petitioner had been charge-sheeted and was only partially exonerated from the charges against him. Justice Biren Vaishnav observed:
"Only when an employee is partially exonerated, would the authority need to decide the question of whether the suspension can be treated to be wholly unjustified and whether he should therefore be given such proportion of pay and allowance as the competent authority would prescribe by a specific order...Here is a case where on a charge-sheet being issued, the order of penalty was passed. Obviously therefore not exonerating the petitioner from the charge. It was therefore, within the right of the employer to treat the period of suspension as such reinstating the petitioner in service with a condition that orders of regularization of suspension is kept in abeyance."
Case Title: Sabirmiya Gulamahemad Ghori V/S Ahmedabad Municipal Corporation & 1 other(s)
Citation: 2022 LiveLaw (Guj) 271
The Gujarat High Court has set aside an order of theAhmedabad Municipal Corporation directing recovery of Rs. 63,878 from its former employee on the ground that the terminal benefits were wrongly granted to him at a higher pay-scale than he was entitled to.
Justice Biren Vaishnav relied on several decisions of the High Court where it was held that when employees are paid excess amount, not because of any misrepresentation or fraud on their part and if such employees had no knowledge that the amount that was being paid to them was more than what they were entitled to, they can't be held responsible for a mistake on part of the employer.
Case Title: Rajendrasinh Velubha Jadeja V/SGeneral Manager (Project)
Citation: 2022 LiveLaw (Guj) 272
The Gujarat High Court has recently explained that when a dispute is raised by employees working in a mine or an office of the mine or ones employed in a mine, it needs to be determined whether the dispute has a nexus to activities in a mine. Only when the industrial dispute concerns a mine can the appropriate government be deemed to be the Central Government as perSec 2(a) of the Industrial Disputes Act, the Bench explained.
Case Title: abhishek industrial service pvt. Ltdv/s nathabhai bhagwanjibhai rathod & 2 other(s)
Citation: 2022 LiveLaw (Guj) 275
The Gujarat High Court observed that in case of an incomplete show cause notice, to which the respondent workman had no occasion to file his response as expected by the employer, inquiry by issuing specific charge sheet is necessary.
Justice AY Kogje thereby held that when the show cause notice /charge was not specific enough for the workman to respond, termination without proper departmental inquiry was a breach of Section 25(G) of the Industrial Disputes Act.
Case Title: Jayeshbhai Jivanbhai Patel v/s ShreeSayan Vibhag Sahakari Khand Udhyog Mandli Ltd & 2 other(s)
Citation: 2022 LiveLaw (Guj) 278
Expressing shock towards the misconduct and negligence displayed by the Petitioner, a Manager of a registered Society, in his duties which 'tarnished the image of the society', the Gujarat High Court has dismissed the application for quashing the communication regarding his termination.
Case Title: Sailesh Shantilal Lunavia V/S Carborandum Universal Limited
Citation: 2022 LiveLaw (Guj) 285
While reiterating that Courts have a duty to interpret statutes with social welfare to further the statutory goal, the Gujarat High Court has directed the Labour Court at Jamnagar to re-examine the issue of awarding interest to the Petitioner workmen.
The Petitioners had submitted that there is no discussion on the issue as to why the interest was not awarded to them.
Justice Biren Vaishnav had taken up both SpecialCivil Applications for the final hearing and relied extensively on Manager,Naaz Cinema Vs. Vasantben Rameshbhai Ghumadiya w/d of Rameshbhai Raijibhai Ghumadiya [2011(2) G.L.H.523] adjudicated by the Division Bench of the Gujarat High Court.
Case Title: Jamnagar Municipal Corporation V/S Avdesh Kishorbhai Solanki
Citation: 2022 LiveLaw (Guj) 289
The Gujarat High Court has held that a workman cannot be denied the benefit of Section 25F of the Industrial Disputes Act which prescribes conditions precedent to retrenchment merely because he is engaged on contract basis, given that he rendered continuous services for several years, without any break.
In this light, Justice AY Kogje dismissed the petition filed by the Jamnagar Municipal Corporation challenging the award of the Labour Court which directed reinstatement of one such contractual workman, whose services were the terminated due to outsourcing of contract work.
Case Title: Gulamkadar Kasambhai Shaikh v. The State Of Gujarat Thru The Principal Secretary
Citation: 2022 LiveLaw (Guj) 302
The Gujarat High Court has reiterated that a Government employee is entitled to avail the benefits of medical facilities without any fetters, and that their claim for reimbursement should not be denied by the State mechanically.
The Bench of Justice Biren Vaishnav extensively relied on the decision of a Coordinate Bench in Chanrakant Kantilal Dave v.State of Gujarat to order full reimbursement of expenses borne by thePetitioner herein during his Angioplasty. The bench reiterated:
"It is a settled legal position that the Government employee during his lifetime or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights.It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated."
Case Title: State Of Gujarat & 2 Other(s) v.Ravindra S. Shukla & 22 Other(s)
Citation: 2022 LiveLaw (Guj) 303
The Gujarat High Court has made it clear that where any private school is de-recognized, the District Educational Officer is required to take steps for declaring the eligible school staff as 'surplus' and absorb them in other schools.
The clarification comes in light of a State policy that whenever the employees of private secondary school are required to be retrenched either due to the closure of classes or due to the closure of school, if they fulfill the criteria prescribed in the G.R.s then they are not required to face actual termination, but by declaring them surplus Government of Gujarat extends protection to their services and they are absorbed in any other aided registered private secondary school.
Case Title: Pritiben Chhaganlal Kanjariaya v.State Of Gujarat & 4 other(s)
Citation: 2022 LiveLaw (Guj) 304
The Gujarat High Court has dismissed a petition filed by Anganwadi workers alleging that they were not promoted to the post of 'Mukhya Sevika' on account of discrimination between those working at the DistrictPanchayat level and those working under the Municipal Corporation.
It was alleged that Anganwadi Workers from District Panchayats were elevated to the aforesaid post while those from the Municipal Corporation were deemed ineligible.
Case Title: Raja Laxman Chopada v. Aditaya Birala Nova Limited
Citation: 2022 LiveLaw (Guj) 306
The Gujarat High Court has held that where the disengagement of workmen by an employer is under dispute, the former claiming illegal termination and the latter asserting voluntary resignation arrangement, theLabour Court may direct deposit of ex-gratia amount in the interim.
Justice Biren Vaishnav thus upheld a LabourCourt's decision directing the workmen to deposit the ex-gratia amount until final disposal of the dispute between the parties.
Case Title: Ushaben Dayashankar Shukla v. StateOf Gujarat
Citation: 2022 LiveLaw (Guj) 308
The Gujarat High Court directed the State authorities to reimburse the medical expenses for the pacemaker implantation undergone by are tired primary school teacher ('Petitioner'), observing that medical reimbursement is a right guaranteed as a right to life.
The Bench of Justice Biren Vaishnav held that the Petitioner would be entitled to reimbursement under Gujarat CivilService (Medical Treatment) Rules, 2015.
Case Title: Gujarat Insecticides Ltd. & 1other(s) v. Presiding Officer & 2 Other(s)
Citation: 2022 LiveLaw (Guj) 312
The Gujarat High Court has reiterated that a person working in "supervisory" capacity cannot raise an industrial dispute under the Industrial Disputes Act, 1947.
The Bench comprising Justice AY Kogje further made it clear that while deciding whether such person is a workman or not, theLabour Court ought to carefully consider the evidence placed on record and there is no exhaustive list of work to differentiate between the workman and the management employee.
Case Title: Shambhavi Kumari V/S SabarmatiUniversity & 3 other(s)
Citation: 2022 LiveLaw (Guj) 313
The Gujarat High Court has declined to intervene in a writ petition seeking reinstatement with full back wages and benefits filed by anAssistant Professor against the Sabarmati University, a private university. Justice Bhargav Karia clarified that the dispute regarding termination was 'in the realm of a private contract' and therefore, held:
"…if at all there is an alleged arbitrary action on the part of the respondent, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition against the private educational institution governed by theGujarat Private Universities Act, 2009 would not be maintainable."
Case Title: Santram Spinners Limited V/S Babubhai Magandas Patel
Citation: 2022 LiveLaw (Guj) 315
The Gujarat High Court has struck down the order of theLabour Court which had held that the Respondent-workman was entitled to reinstatement along with 20% back wages in the Petitioner-institute. The HighCourt, after perusing, Form No. 16A which pertains to Tax Deducted at Source, concluded that the Respondent was being paid consultant fees and not a salary. The same had been ignored by the Labour Court.
Case Title: Chief Executive & 1 Other(S) V/S Vanjibhai Laljibhai Chaudhary
Citation: 2022 LiveLaw (Guj) 327
The Gujarat High Court held that termination of service because of non-extension of probation does not amount to 'retrenchment' underSection 2(oo)(bb) of the Industrial Disputes Act.
Consequently, Justice Biren Vaishnav set aside an order of the Labour Court reinstating the Respondent-workman to the position of a 'Community-Organiser-Cum-Trainee' in the Petitioner-Trust.
"Viewed from the definition of "retrenchment"defining Section 2 (oo) (bb), the `term' excludes termination of service of a workman as a result of non renewal of a contract of the employment or termination on expiry in view of a stipulation as contained in the order therein."
Case Title: Rameshbhai Bhathibhai Pagi V/SDeputy Executive Engineer
Citation: 2022 LiveLaw (Guj) 328
The Gujarat High Court has reiterated that once a LabourCourt comes to the conclusion that Sections 25F, G and H of the IndustrialDisputes Act have been violated, reinstatement of workman ought to follow.
The Bench comprising Justice Biren Vaishnav was hearing several petitions challenging the Labour Court's order wherein compensation of Rs. 72,000 was awarded to each of the Petitioner-workmen rather than reinstatement with back wages.
Case Title: X v/s Indext/C Industrial ExtensionCottage & 1 other(s)
Citation: 2022 LiveLaw (Guj) 329
The Gujarat High Court has reiterated that when there is a specific condition provided in the consent letter of employment that the appointment is on contract basis, then such workman cannot claim any benefit by contending that the Respondent establishment had breached Section 25(F) of theIndustrial Disputes Act.
The Petitioner, claiming to be sexually harassed by her immediate superior, was agitating an order of the Labour Court by averring that the Labour Court should have held that the contractual appointment was a mere 'camouflage' and she was entitled to retrenchment compensation.
Case Title: Savitaben Mangalbhai Harijan V/S Superintendent
Citation: 2022 LiveLaw (Guj) 351
In a recent order, the Gujarat High Court has held that the benefits of reinstatement would be a 'normal course' that ought to follow once there is a violative of Section 25(F) under the Industrial Disputes Act.
Keeping in view this principle, the High Court reinstated, without back wages, the Petitioner who working as a 'sweeper' under the State for 6 years. The Labour Court's award only granting lumpsum compensation to the tune of Rs. 54,000 as was modified to that extent. Justice BirenVaishnav stated:
"Having therefore found that the Labour Court having positively held that there was violation of Sec.25(F) of the Act, for no fault of the petitioner, the Labour Court proceedings having been prolonged at the instance of the respondents, the petitioner could not have been then deprived of the benefits of reinstatement which is a normal course that ought to have been followed once violation of Sec.25(F) is otherwise proved."
Case Title: Bank Of Baroda V/S Harshadgiri Chanchalgiri Goswami
Citation: 2022 LiveLaw (Guj) 361
The Gujarat High Court has affirmed that a 'permanent part-time' employee is entitled to grant of pension in terms of Dena Bank (Employees') Pension Regulations, 1995.
The Bench comprising Justice AJ Desai and JusticeMauna Bhatt thus upheld the single bench order directing grant of pension to a part-time cleaner, who had voluntarily retired from service.
Case Title: Mohbatsinh Balusinh Zala V/S StateOf Gujarat
Citation: 2022 LiveLaw (Guj) 364
The Gujarat High Court has held that an order of 'premature retirement' become stigmatic if such order contains statements indicating misconduct or lack of integrity.
"Where orders have been passed which indicate blemish, disgrace, disrespute etc., and in that context if an order of termination or of compulsory retirement is seen, the same would amount to stigma by virtue of a statement made in the order."
Case Title: Sharda Chimanbhai Lalbhai V/S Dinesh Mohanbhai Prajapati
Citation: 2022 LiveLaw (Guj) 372
The Gujarat High Court has held that merely because an employee appointed to Class-IV post is handed over additional duties with respect to a higher post for a temporary period, may be during the leave vacancy of actual employee, cannot demand entire salary differential.
The Court took into account the differential aspect of appointment in Class-IV and Class-III category and concluded that merely because the petitioner, a Class-IV workman was doing additional work of Class-III category, it did not imply that he will be entitled to the pay-scale of Class-III post.
184. Gujarat Educational Institutions Services Tribunal Can Direct Execution Of Its Orders: High Court
Case Title: Gharshala Sanstha v/s Jayshriben Ghanshyamlal Bhatt & 5 other(s)
Citation: 2022 LiveLaw (Guj) 373
In a recent order, the Gujarat High Court has confirmed that while deciding applications u/s 10 of the Contempt of Courts Act 1971 for non-compliance of the order, the Gujarat Educational Institutions Services has powers under Clause 14 of the Guj. Primary Education Tribunal (Procedure)Order, 1987 to direct the execution of its orders.
However, Justice Bhargav Karia explained that the Executing Court cannot go beyond the decree. In light of this, theSingle Judge Bench held that the Tribunal was correct in enforcing the compromise arrived at by both the Petitioner Trust and the Teachers to pay the pay-scales in accordance with Clause 2 of the terms of the compromise.
Case Title: Gohil Rameshbhai Amarsinh V/S IndianPetrochemicals Corporation Ltd.
Citation: 2022 LiveLaw (Guj) 383
The Gujarat High Court has reiterated the position of law that once the employees have accepted the benefits under Voluntary RetirementScheme, it is not open for the employees to challenge the scheme.
They can also not contend after having withdrawn the amount, that they should be permitted to continue with their employment services, it added.
Reiterating this principle, Justice BirenVaishnav declined to interfere with the award of the Labour Court wherein the Court had found that the employees had withdrawn their applications for VRS after their applications were accepted by the employer and the amounts were paid to them.
Case title - Tushar Karsanbhai Vinzubhai v. Paschim Gujarat Vij Co.Ltd. [LETTERS PATENT APPEAL NO. 331 of 2022]
Case Citation: 2022 LiveLaw (Guj) 389
The Gujarat High Court denied relief to a candidate who was treated as ineligible for the post ofElectrical Assistant (in a government power company), on the ground that he is suffering from colour blindness.
The division bench of Justice N. V. Anjaria andJustice Mauna M. Bhatt dismissed the appeal filed by the candidate challenging the Single Judge order upholding the official authorities' decision to declare him unfit for the job on the ground of his colour blindness.
Case Title: Mahendra Chawla v. Union of India
Citation: 2022 LiveLaw (Guj) 415
The Gujarat High Court dismissed a petition filed by a candidate for setting aside a medical examination report which declared him unfit for the post of 'Constable Store Keeper' in the Border Security Force (BSF) in view of a tattoo depicting a heart and arrow with initials 'M' on his right forearm.
The petitioner had applied for the post in July and had cleared all the examinations. Thereafter, he was called for the 'MedicalExamination' on November 17, where he was declared 'unfit' in view of the tattoo. Upon removal of the tattoo, he appeared for the 'Review Medical Examination' but was again declared unfit.
Case Title :Sh. Manoj Kumar v State of Himachal and Ors.
Citation: 2022 LiveLaw (HP) 30
The Himachal Pradesh High Court has made it clear that in case a government employee requires transfer on account of individual hardship, such employee may approach the employer with his request. However, a recommendation made by a Member of Parliament on such employee's behalf cannot be sustained.
The observation came from a Division Bench of Justice Tarlok Singh Chauhan and Justice Virender Singh while deciding the petition filed by an employee who was aggrieved by his transfer order.
Case Title: OM PARKASH AND ORS. VERSUS STATE OF HIMACHAL PRADESH AND ORS.
Citation: 2022 LiveLaw (HP) 25
The Himachal Pradesh High Court has made it clear that service rules framed by a state agency must be applied uniformly throughout the State. The observation came from Justice Vivek Singh Thakur qua the implementation of Himachal Pradesh Kanungo's Service Rules, 1951.
The bench made it clear that a decision rendered by the High Court qua Kanungos appointed in District Shimla will also be applicable to petitioners who were appointed in District Mandi.
Case Title: UNITED INDIA INSURANCE COMPLANY LTD v. SMT. SUMNA DEVI
Citation: 2022 LiveLaw (HP) 24
The Himachal Pradesh High Court observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased, the same should not justify adoption of lowest tier of minimum wage while computing the income.
Observation came from Justice Jyotsna Rewal Dua while deciding the appeal preferred by an Insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.
Case Title : SH. RAJ KUMAR v STATE OF HIMACHAL PRADESH AND ORS
Citation: 2022 LiveLaw (HP) 21
The Himachal Pradesh High Court observed that termination of an employee from service summarily, merely on account of registration of FIR and without conducting proper inquiry, violates principles of natural justice.
The observation came from Justice Satyen Vaidya: "Thus, the termination of the petitioner summarily without adopting due procedure and was clearly in violation of the principle of natural justice. Notwithstanding the illegality found in the termination of the petitioner, this Court is not oblivious to the fact that serious allegations involving moral turpitude were made against the petitioner by none-else than a student of the school where the petitioner was a teacher. The petitioner was charged for offence under Section 354-A IPC. Though, he has been acquitted, but it is trite law that mere acquittal does not entitle an employee to seek service benefits. Each and every case has to be adjudged on its own merits and the authority competent to adjudge is the employer."
Case Title: Roshan Lal v. HP Power Corporation Ltd. & Ors.
Citation: 2022 LiveLaw (HP) 7
The Himachal Pradesh High Court expressed shock at the arbitrary appointments made by the State Electricity Board and the HP Power Corporation, without even conducting any formal selection process.
The bench of Justice Tarlok Singh Chauhan and Justice Chander Bhusan Barowalia observed, "The official respondents cannot act as despots or monarchs and are obliged to act in accordance with the principles of democracy, equity, equality and solidarity. 25 The entire scenario shocks the conscience of this Court to come across such systematic fraud committed by those who are at the helm of affairs of respondent-Corporation in dealing with its property as if it was their personal property."
193. Right To 'Equal Pay For Equal Work' Is Constitutionally Enforceable: Himachal Pradesh High Court
Case Title: Rattan Lal Bharadwaj vs State Of HP
Citation: 2022 LiveLaw (HP) 5
The Himachal Pradesh High Court has held that the provision of 'equal pay for equal work' envisaged under Article 39(d) of the Constitution is a constitutionally enforceable right.
Justice Chander Bhusan Barowalia observed,
"Article 39(d) of the Constitution of India provides for equal pay for equal work. This right of the person for equal pay for equal work is recognized as a fundamental right by various pronouncements of the Apex Court and the law is settled that the right to equal pay for equal work is a constitutional enforceable right."
Case title - Moti Ram v. Himachal Pradesh Electricity Board Limited and others
Case Citation: 2022 LiveLaw (HP) 1
The Himachal Pradesh High Court dismissed a plea seeking compassionate appointment filed by a son (seeking a job in place of his father) while noting that his mother is already in Government Service, and therefore, as per the State policy on compassionate appointments, he can't be given employment assistance.
The Bench of Justice Sabina and Justice Satyen Vaidya also observed that a dependant member of the family of a deceased employee is entitled to apply for compassionate appointment only in accordance with the terms and conditions prescribed by the State in this regard.
Case Title: Priyanka v. State of Himachal Pradesh and Others
Citation: 2022 LiveLaw (HP) 37
In a case filed by a candidate claiming reservation based on her status of being a person from a 'Scheduled Tribe', the Himachal Pradesh High Court has held that reservation cannot be claimed by a person in the migratory state upon migration from another state even when such migration took place for reasons of marriage.
Case Title: Abdul Rehman Dar Vs. State of J&K & Anr
Citation : 2022 LiveLaw (JK) 40
The High Court of Jammu & Kashmir and Ladakh reiterated that holding departmental proceedings and recording finding of guilt against any delinquent and imposing punishment for the same, is quasi-judicial function and not administrative function.
Quashing an order issued by Secretary J&K State Board of School Education (BOSE) Srinagar against the petitioner, who was working as Senior Assistant in the Board, the court has observed that the penalty of withholding promotion of the petitioner from the date he becomes due for next promotion, is arbitrary and is not sustainable for the reason that no departmental enquiry was conducted into the alleged misconduct.
Case Title : Shahnawaz Shah v High Court of JK and others
Citation: 2022 LiveLaw (JKL) 45
The Jammu and Kashmir and ladakh High Court quashed the termination order of an employee, working with subordinate judiciary in J&K, and held that unauthorized absence cannot and must not amount to "automatic cessation" of service, even if the delinquent is a probationer.
Case Title : State of JK & Anr. V Danish Zia Bhat & Ors.
Citation: 2022 LiveLaw (JKL) 50
The Jammu and Kashmir and Ladakh High Court reiterated that no candidate from the waiting list shall be appointed on any vacancy which is caused due to resignation of a selected candidate after joining against the said post.
199. Employment Conditions Can't Take Away Employees' Right To Seek Judicial Review Of Employer's Actions: J&K&L High Court
Case Title: Jaffar Hajam Mohd Abbas and ors. V/s Chairman and Managing Director, FCI & ors
Citation: 2022 LiveLaw (JKL) 64
The court held that the right to seek judicial review is a vital right conferred by the Constitution and any terms and conditions of employment, which restrain a person to seek legal remedies for enforcement of his rights, are null and void. employer cannot impose such conditions of employment which have the effect of taking away the right of its employees to seek judicial review of the actions of the employer, the bench of Justice Sanjeev Kumar underscored.
200. Courts Can't Expand Scope Of Qualification Prescribed By Employer By Reading Into It A Higher Qualification: J&K&L High Court
Case Title: Qazi Gousia Jeelani V/s Mehraj Ud Din Najar
Citation: 2022 LiveLaw (JKL) 69
A division bench comprising Justices Sanjeev Kumar and M A Chaudhary ruled that a person, to be eligible for a post, must possess the qualification prescribed for the post and it is not within the province of the Courts of law to read the higher qualification into the qualification prescribed in the rules or the advertisement as essential qualification.
