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The Competent Authority cannot discharge the Employee on the Sole ground of Non-Disclosure of Information: Calcutta High Court

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Case title: Sankar Mandal Vs Union of India & Ors.

Case no.: WPA 3225 of 2016

Decision on: February 5th, 2024

Quoram: Justice Raja Basu Chowdhury

Facts of the case

The petitioner, Sankar Mondal had participated in a recruitment process for the post of Constable with reference to the Employment Notice issued by the Railway Protection Force. On successful completion of the same, he was called for training and was required to report to the SSB ATC Debandra nagar, Assam, along with other successful candidates. He was then posted at the 8th Battalion, Railway Protection Special Force CLW where he completed his further practical training. However, on 5th January, 2016, he was discharged from enlistment for the post of Constable, on the ground of false declaration or non-disclosure of a pending criminal case against him in the Attestation Form. The petitioner, through a writ petition challenged the order which forfeited his appointment.

Submissions on behalf of the Petitioners

The Counsel submitted that the respondents had mechanically dismissed the petitioner from service without considering the order of acquittal in the criminal case wherein he was a co-accused. Further, pointing out to the criminal proceedings against the petitioner, he submitted that the petitioner was only a co-accused in connection with a false complaint lodged against him relating to a dispute with his neighbor wherein the Judicial Magistrate held that the accused persons were not guilty of the charges levelled against them.

He contended that since the charges were trivial in nature, the discharge of service of the Petitioner on the basis of the same amounted to a violation of Articles 14 and 19(1)(g) of the Constitution of India. As such, he submitted that the charges of misrepresentation levelled against the petitioner, should be treated to be a mere omission and nothing more. The Counsel quoted various judgments to support his contentions and thus, prayed to allow the present petition and direct the respondents to reinstate the petitioner back in service by setting aside the order of discharge.

Submissions on behalf of the Respondents

The Counsel, on the contrary submitted that the Petitioner, on the date of filling up the Attestation Form was conscious and aware of a criminal proceeding was pending against him and as such he deliberately and willfully suppressed the fact. Further, he contended that the very act of suppression of criminal case pending against the Petitioner while filling up the Form amounted to furnishing false declaration and misrepresentation. He submitted that dishonesty should not be permitted to bear the fruit and benefit to those persons who have misrepresented themselves and relied on the case of Devendra Kumar v. State of Uttaranchal to support him contentions.

Further, by referring to Rule 52.2 and 67.2 of the Railway Protection Force Rules, 1987 and highlighting the power of the authorities to verify the petitioner’s candidature he submitted that there was no irregularity in carrying out the same. Furthermore, distinguishing the judgments relied on by opposite Counsel, he submitted that in none of the cases a person who is charged with a heinous or a serious offence has been let off. Therefore, the Counsel in the light of the judgment delivered in the case of Avtar Singh v. UOI & Ors submitted that the petitioner may also be remanded to the authorities for a decision in the matter.

Court’s Analysis and Judgement                                                    

The Court on brief perusal of the facts at hand and materials on record observed that an employer while passing an order of discharge from service for giving false information may take into consideration the criminal antecedents and has a right to consider continuance of such candidate. However, the employer cannot be compelled to appoint such a candidate with criminal antecedents. Further, Justice Raja Basu Chowdhury, quoted the precedence from various cases to adjudicate the matter.

Firstly, in the case of Pawan Kumar v. UOI & Anr, the Apex Court had categorically stated that mere suppression of material or false information in a given case does not authorize the employer to arbitrarily discharge/terminate the employee from service. Secondly, in the case of Mohammed Imran v. State of Maharashtra and Ors the Court reiterated the rulings of Avtar Singh case which held that that although empanelment creates no right to appointment, there cannot be any arbitrary denial after empanelment as well. Thirdly, relied on the case of Union of India & Ors v. Sri Sukdev Mondal which held that the Learned Single Judge had rightly directed reinstatement of the employee in service in the post of constable at the stage from where he was dismissed by his employer and had consequentially affirmed the said direction.

The Bench noted that the respondents had passed the order of discharge by overlooking the order of acquittal of the petitioner. It observed that apart from the failure of the petitioner to disclose the relevant information in the Attestation Form, there was no other conduct for which the Petitioner was discharged. Therefore, the court held that non-disclosure of information cannot form the sole ground for the competent authority to discharge the Petitioner by the stroke of a pen. The Court noted that the order of discharge cannot be sustained, although it is ultimately vested with the employer to decide the matter judiciously and thereby, directed the respondent no. 2, to review the aforesaid decision of discharge in the light of the observation made herein and to reinstate the petitioner.

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Judgement Reviewed by – Keerthi K

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Delhi HC: Onus on the claimant to Establish Employee-Employer Relationship

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Case title:-Sunil Kumar & ors. Versus The state & ors.

Case no:-Wp..(c) 2931/2024 and cm appl no. 12084/2024

Decided on :-28th February 2024

Quorum:-Hon’ble Mr.Justice Chandra Dhari Singh

Facts of the case:-

The petitioners in this case, referred to as “petitioner workmen” from here on, began working for respondent no. 3, or M/s. Ask wire harness (referred to as “respondent management” from now on), in a variety of capacities. To save time the relevant information including the petitioners’ designation, date of appointment, and most recent salary is shown in tabular form . On august 3, 2011, the respondent management fired each of the petitioner workers in accordance with the petitioners’ pleas. Following that, the petitioner workers complained to the regional labour commissioner. The respondent management reinstated the petitioner workers following the involvement of the regional labour commissioner. The petitioner workers, via their trade union, issued a formal demand notice dated October 23, 2011, citing non payment of earnest wages for the period of June 1, 2011, to September 30, 2011.Following that, the petitioner workers filed applications with the learned labour court on November 16, 2011, citing default in accordance with section 15(2) of the payment of wages act, 1936. Payment made by the respondent management between June 1st, 2011 and September 30th, 2011.After the pleadings were concluded on October 31, 2012, the learned labour court formulated the following questions:  Is the application that the worker filed not maintainable?  Solace following that, the learned labour court issued an order for each of the petitioner workers individually in the contested decision dated July 31, 2017, noting that the workers had neglected to prove for the record that they were employed by the management from June 1, 2011, to September 30, 2011. As a result, the petitioner workers are not entitled to the pay they have claimed in their current applications. The petitioner workers then filed a review case against the aforementioned orders with the labour court, rouse avenue court, Delhi. The learned labour court denied the plea in a common order dated November 22, 2019. Because they were upset by the aforementioned instructions, the petitioner workers filed a writ suit under Article 226 of the constitution in an attempt to have the contested orders from the 31st in July 2017 and November 22, 2019.

Petitioner Contentions:-

Learned counsel appearing on behalf of the petitioner workmen submitted that the learned labour court has erred in passing the impugned orders as the same have been passed without taking into consideration the entire facts and circumstances of the case.It is submitted that the petitioner workmen had placed on record the photocopy of the attendance card for the month of November, 2011, which had not been appreciated by the learned labour court, leading to passing of the impugned orders. It is submitted that considering the principle of preponderance of probabilities, the learned labour court ought to have deduced from the attendance card of November, 2011, that the petitioner workmen were employed during the period i.e., 1st June, 2011 to 30th September, 2011, for which they seek payment of earnest wages.it is submitted that the learned labour court failed to consider the plea taken by the management in its written statement that the petitioner workmen had abandoned the services w.e.f. 1st June, 2011. It is submitted that if the above submission is presumed to be true, how the petitioner workmen could be in the service of the management for the month of November, 2011, for which the attendance card is on record.

Respondent Contentions:-

Counsel for the respondent states that it is submitted that the attendance card were issued to the petitioner workmen on monthly basis by the respondent management, subject to depositing the attendance card for the previous month before it and hence, it is in such light, that the petitioner workmen have failed to produce on record the attendance card for the period prior to the month of November, 2011. It is submitted that the petitioner workmen have been denied legitimate entitlement of earnest wages for the period 1st June, 2011 to 30th September, 2011, by the respondent management therefore, in light of the foregoing submissions, the learned counsel appearing on behalf of the petitioner workmen prays that the instant petition may be allowed and the relief be granted, as pray edit is submitted that it is a settled position of law that the onus to prove that the petitioner workmen were in the service of the respondent management is upon the claimant, i.e., the party contending the same before the learned court. It is submitted that the instant petition is a frivolous claim as the petitioner workmen being claimants have failed to establish any shred of evidence to support their claim and establish employment with the respondent management for the period 1st June, 2011, to 30th September, 2011, for which they seek payment of earnest wages. The instant petitioner workmen have approached this court seeking issuance of a writ of certiorari to set aside the findings of the learned labour court as passed vide the impugned order dated 31st July, 2017, and 22ndnovember, 2019. The petitioner workmen have further sought for issuance of a writ of mandamus to direct the respondent to release the salary of the petitioner for the period 1st June, 2011 to 30th November, 2011.

Court Analysis and Judgement:-

Court stated that at last, it is imperative for this court to address one of the contentions vehemently argued by the learned counsel for the petitioner workmen. During the course of proceedings, the learned counsel vehemently contended that the production of attendance card for the month of November, 2011, must have been taken into consideration and applying the principles of preponderance of probabilities, it should have been presumed that they worked during the contested period. With regard to the above, this court is of the view that it would be wrong to presume the contested position since the petitioner workmen have failed to provide any other record to establish their employment with the respondent management. On being taken through the findings of the learned labour courts, it is crystal clear that the learned courts below had sufficient basis for recording its findings, and upon perusal of the same, the findings recorded by the learned court below are found satisfactory. Therefore, this court discerns no material to establish the propositions put forth by the petitioner workmen to characterise the orders passed by the learned labour courts as perverse and the reasoning provided by the learned courts below are well justified and legally tenable. In view of the above discussion of facts and law, this court finds no infirmity in the impugned orders dated 31st July, 2017, and 22nd November, 2019, passed by the learned presiding officer, labour court-v, karkardooma, delhi and presiding officer, labour court-v, rouse avenue court complex, New Delhi, respectively. Based on the aforementioned arguments, this writ petition accordingly dismissed.

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Judgement Analysis Written by – K.Immey Grace

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Supreme Court: Employer is not permitted to alter the advertised qualifications in the middle of the selection process

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Case Title: Anil Kishore pandit versus The state of Bihar and others

Case No: Civil Appeal No.1566 of 2024

Decided on: February 02,2024

Quorum: Hon’ble Ms.Justice Hima Kohli and Hon’ble Mr. Justice Ahsanuddin Amanullah

Facts of the case:

The District Employment Officer, West Champaran, Bettiah, issued a memo on October 13, 2011, requesting applications from qualified individuals for the position of amins according to a contract. For the Economic Backward Class 3 category, the age cut off date for the District level vacancy was set at 40 years old as of January 1, 2011 for both men and women. The appellant responded to the October 13, 2011, advertisement by applying for the specified position. There is no question about the appellant’s age as of January 1, 2011, which was 39 years, 11 months, and 27 days. That is to say the petitioner was eligible. The age requirements for the advertised topic. According to the records, on November 15, 2011, another notice was posted on the Notice Board of the Collectorate, West Champaran, in response to a letter 4 that was later sent by the Principal Secretary of the Revenue and L.R. Department, Government of Bihar. The notice stated that interested parties could apply until November 30, 2011.The appellant showed up on January 22, 2012, for the written exam. After that, his name was put at Serial No. 2 on a merit list that was created for counseling. On December 4, 2012, the District establishment created a selection list. His name was listed under Serial No. 9, while Respondent No. 8’s name was listed under Serial No. 11. The appellant’s candidature was withdrawn due to his age, as stated in the notes column. The appellant, who was upset by the aforementioned, unsuccessfully requested that the outcomes be corrected in a representation made to the District Magistrate.

Appellant Contentions:-

The appellant has submitted the representation to the district court for reconsidering of the result. But there is no use. Then the appellant has filed the writ petition before the High court with a direction issued to the collector to examine his grievance. That the entire selection process has been carried on basis of treating the cut off. Learned counsel for the appellant has said that the division bench ignored the date of advertisement which was mentioned the cut off in 1st January,2011.The respondents changing the cut off was not given in the advertisement but was places in notice board if collector office. It was not the procedure to be done.

Respondent Contentions:-

The respondent did not issue a communication after giving public advertisement fixing the cut off date for the ae of candidates. It was based on discussion which was done internally with in the department and they decided to give a fresh notice changing the date .The earlier advertisement which was given by the respondent gas been applied by the appellant. Based on the advertisement his age was permitted . He was in starting number in selection list and he was also appointed for the post .

Court Analysis and Judgement:-

The court said that the impunged judgement has been quashed and set aside. It is deemed appropriate to set the clock back and uphold the earlier order passed by the respondent appointing the appellant to the post of amin by the reckoning age of candidates in EBC category as 40 years. The appointment of the appellant has been restored from the date of his initial appointment without any break. And the appellant would give all the notional benefits except the actual wages. He will not be discharged from his duties to the said post for all these years. A letter has been given that the reappointment of the appellant to the post which was issued by the respondent on the above terms which was given within two weeks from today. The appeal has been allowed.

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Judgement Analysis Written by – K.Immey Grace

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A person in managerial position cannot be termed as an workman under the Industrial Dispute Act, 1947 : Bombay HC

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TITLE : Rohit Dembiwal v Tata Consultancy Services Ltd

CORAM : Hon’ble Justice Milind N Jadhav

DATE :  2nd January 2024

CITATION : WP No 10523 of 2023

FACTS

The writ petition was filed under Article 226 and 227 of the Constitution challenging the order passed by the Industrial Court under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Petitioner was appointed as IT Analyst Grade C-2 on basic salary of Rs.14,500/- per month excluding all other benefits. Few months later he was confirmed in the services of respondent company. However he was terminated the next year and he contends that the due process of law was not followed. The industrial court held that he was in a supervisory position and hence the provisions of labour law would not be attracted

LAWS INVOLVED

Section 2(s) of Industrial Dispute Act, 1947 :

(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute

Section 3(5) of The Maharashtra Recognition Of Trade Unions And Prevention Of Unfair Labour Practices Act, 1971.

(5) “employee” in relation to an industry to which the Bombay Act for the time being applies, means an employee as defined in clause (13) of section 3 of the Bombay Act; and in any other case, means a workman as defined in clause (s) of section 2 of the Central Act;

ISSUES

whether the Petitioner can be qualified as a workmen under the definition of ‘workman’ contained in Section 2(s) of the ID Act and consequently definition of ‘employee’ within the meaning of Section 3(5) of the MRTU and PULP Act

JUDGEMENT

By analyzing the witnesses in the proceedings, it was observed that the petitioner was acting in managerial capacity. It was seen that Petitioner was a Module leader of the assignment given to him. It was seen that Petitioner was empowered to grant planned leave to associates working with him in that module and his signature was appended on the time sheet. Petitioner’s job was to analyse the nature of job, issues concerned, problems faced by the customer and assign the same to team members working under him according to their expertise for resolution of the same.

The court held that the labour court was right in holding that the petitioner does not fall under the category of workmen and upheld the order.

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Written by- Sanjana Ravichandran

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An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities: Gujarat High Court dismisses appeal

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Vice Chancellor vs Amulaben Narendrabhai Nimavat on 17 April, 2023

Bench: Honourable Justice Hasmukh D. Suthar

R/SPECIAL CIVIL APPLICATION NO. 8816 of 2020

Facts

In this case, the original petitioner was appointed as a kitchen orker by the original respondent(the present appellant. However, her services were terminated. The original petitioner alleged that that her services were terminated without following the due procedure and thus raised an industrial dispute which was referred to the concerned Labour Court. The Labour Court passed an award whereby the Labour Court partly allowed the reference and directed the present appellant to reinstate the petitioner on her original post with continuity in service but without back wages.

Hence, the petitioner filed the a petition before the Court, wherein she requested the Court to issue a writ of mandamus for her regularization of direct the present respondents to pay all the benefits at par with the permanent employees of the Gujarat Ayurvedic University

The learned Single Judge partly allowed the said petition and even though he did not grant the relief prayed for by the petitioner for regularization, he directed the present appellant to pay a salary in the minimum of the pay scale as paid to the regularly appointed employees on the post of a Kitchen Worker. Being aggrieved and dissatisfied with the order passed by the learned Single Judge, the appellant has preferred the present appeal.

Judgement

The Court, after perusing the matter at hand held that the benefit of equal pay for equal work applies to all employees and there can be no discrimination whatsoever. The Court further held that it is fallacious to determine artificial parameters to deny fruits of labour as such an action besides being demeaning, strikes at the very foundation of human dignity. It came to a conclusion that the learned single judge had rightly applied the principle of ‘equal pay for equal work’, thereby issuing a direction to the present appellant to pay the the salary in the minimum of the pay scale as paid to the regularly appointed employees on the post of Kitchen Worker. Due to this reason, the appeal was dismissed.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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