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Workmen’s Rights Challenge: The High Court of Delhi Upholds Denial of Regularization in Association-Employee Feud, determines no illegality or profligacy in the judgment of the Tribunal

Case Title – Kanchanjunga Building Employees Union Vs. Kanchanjunga Flat Owners’ Society & Anr.

Case Number – W.P. (C) 6193/2008

Dated on – 28th March, 2024

Quorum – Justice Chandra Dhari Singh

FACTS OF THE CASE

In the case of Kanchanjunga Building Employees Union Vs. Kanchanjunga Flat Owner’s Society & Anr., the Kanchanjunga building was constructed in the year 1972 by M/s. Kailash Nath & Associates. The owners of the flat created the Kanchanjunga Flat Owners’ Association in the year 1978 to manage the security, maintenance, and the cleanliness of the building. Later, through the contractors, the workmen were employed from 1988-1996 by the members of the association. The workmen sought for the regularization of the service which led to an industrial dispute that was later referred to the Industrial Tribunal. The regularization of the workmen was denied by the Tribunal in its judgment. Being aggrieved by the decision of the Tribunal, the workmen appealed in the High Court of Delhi, challenging the decision of the Tribunal.

ISSUES

The main issue of the case whirled around whether the workmen were entitled to the regularization?

Whether there was an existence of an employer-employee relationship between the workmen and the association?

Whether the association qualifies as an industry under Section 2(j) of the Industrial Dispute Act, 1947?

LEGAL PROVISIONS

Article 226 of the Constitution of India prescribes that every High Court shall have the powers throughout the territories in relation to which it exercised jurisdiction to issue writs, orders, or directions to any person or authority

Section 2(j) of the Industrial Dispute Act, 1947, prescribes the “definition of Industry” as any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

CONTENTIONS OF THE APPELLANTS

The Appellants, through their counsel, in the said case contented that the services of the workmen were converted into contractual labour just to strip them of the benefits.

The Appellants, through their counsel, in the said case contented that the Respondents’ Association was the actual employer, even if they were engaged through the contractors.

The Appellants, through their counsel, in the said case contented that the lack of documentation such as the leave application, does not repudiate the employer-employee relationship.

The Appellants, through their counsel, in the said case contented that the control of the Association over the workmen signifies an employer-employee relationship.

The Appellants, through their counsel, in the said case contented that since the year 1985, the workmen have been working with the association which can be proved by way of documents.

CONTENTIONS OF THE RESPONDENTS

The Respondents, through their counsel, in the said case contented that there is no such employer-employee relationship established between the workmen and the association.

The Respondents, through their counsel, in the said case contented that the workmen are the employees of the contractors and not of the association.

The Respondents, through their counsel, in the said case contented that the lack of documentary evidences justify the absence of direct employment with the association.

The Respondents, through their counsel, in the said case contented that the workmen were not directly controlled by the association rather the wages were paid by the contractors.

COURT ANALYSIS AND JUDGMENT

The court in the case of Kanchanjunga Building Employees Union Vs. Kanchanjunga Flat Owner’s Society & Anr., analysed the testimonies of the witnesses and the documentary evidence furnished and stated that the Burden of Proof lies on the claimant to establish the relationship between the employer and the employees. The court observed that no conclusive evidence showed any direct employment of the workmen with the association rather the contractors had the control over the workmen and paid waged to them, indicating their employment. The court observed that the activities of the association did not primarily involve the commercial functions to qualify as an industry.  Hence, the court in this case, upheld the decision of the Tribunal, determining no illegality or profligacy in the judgment of the Tribunal. The court, thus, dismissed the petition and upheld the impugned order.

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Judgement Reviewed by – Sruti Sikha Maharana

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Calcutta High Court Upholds Associate Professor’s Right to Promotion and Benefits, Affirms Decision on Humanitarian Grounds

Case Name:  Dr. Tapas Kumar Mandal v. Union of India & Ors 

Case No.: WPA 24009 of 2019 

Dated: March 19, 2024 

Quorum: Justice Amrita Sinha 

 

FACTS OF THE CASE: 

In this current writ petition, the petitioner requests that the Departmental Promotion Committee, also known as “the DPC,” recommend that he be promoted. Additionally, the petitioner requests that all encashment of leave, pension, and gratuity be released, as well as a directive to the Institute’s authority to accept this recommendation. 

The Institute was being served by the petitioner. On June 30, 2010, he reached the usual age of retirement and retired from the military. The petitioner was under consideration for a promotion from Associate Professor grade E to Professor grade F before to retirement; however, the petitioner was superannuated prior to the promotion being finalised. 

While the petitioner was employed, he was the target of disciplinary action. Long after he retired, the aforementioned procedure was still ongoing. The petitioner filed a writ suit with this court, and on June 29, 2017, the Hon’ble Division Bench issued an order addressing the matter. The Hon’ble Division Bench instructed the authority to grant admissible service benefits that were denied to the petitioner as a result of the order of punishment dated June 16, 2011, and to drop the disciplinary proceeding that was started against the petitioner through the charge sheet dated August 30, 2005, while deciding how to handle the appeal. 

The petitioner filed a contempt application on June 21, 2019, claiming that he had not followed the Hon’ble Division Bench’s directive, since he had not been granted promotion. The case was eventually resolved. The petitioner made a push for advancement in the contempt motion. It was with satisfaction that the Honourable Court noted that there was no clear directive on the power to promote the petitioner.  

The petitioner has been denied promotion by the Institute, and this is the main reason for the current writ suit. 

 

CONTENTIONS OF THE PETITIONER: 

In their petition, the petitioners requested that the Departmental Promotion Committee’s (DPC) proposal be accepted by the Saha Institute of Nuclear Physics, also known as “the Institute.” His advancement from Associate Professor (grade E) to Professor (grade F) was the subject of the recommendation.  

The counsel asked for a further directive to discharge any consequential benefits, such as leave encashment, pension, and gratuity, in addition to the promotion. It was further contended that On June 30, 2010, Dr. Mandal announced his retirement from the Department of Health and Welfare. But, even after he retired, the disciplinary actions that had been started against him while he was serving persisted. 

Following the submission of a writ petition by Dr. Mandal, the Hon’ble Division Bench directed the authorities to halt the disciplinary action against him. Additionally, the court ordered that benefits for eligible service that had previously been refused be granted. In addition, Dr. Mandal was entitled to receive payment for any unpaid wage arrears resulting from a promotion awarded by the Governing Council. 

Dr. Mandal claimed in his application for contempt that he had not followed the court’s order on promotion as he had not received promotion. 

 

CONTENTIONS OF THE RESPONDENTS: 

The petitioner’s promotion claim was disputed by the respondents. They claimed that as the promotion was not completed before Dr. Mandal’s superannuation, he was not eligible to receive the benefits of the promotion. 

It was argued by the respondents that Dr. Mandal’s disciplinary actions throughout his employment were appropriate and justified. They maintained that these procedures ought to go on even after he retires and were unrelated to the promotion controversy. 

The respondents claimed they had followed the court’s ruling in order to justify their acts. They argued that, per the directive of the Honourable Division Bench, the disciplinary proceedings were dropped. But they made it clear that Dr. Mandal was not given the promotion by default. 

In reference to the salary arrears, the respondents contended that payment would only occur in the event that Dr. Mandal was promoted by the Governing Council. They insisted that there was no duty to make up any arrears up until that point. 

The promotion procedure, disciplinary actions, and following the court’s orders constituted the focal points of the respondents’ arguments, to sum up. 

 

COURT’S ANALYSIS AND JUDGMENT: 

The Court decided that it lacked the necessary knowledge to evaluate an employee’s merits. It is the responsibility of the employer to evaluate each candidate for a promotion based only on merit, and only then may the employer move forward with the decision. Since the employer has exclusive authority over the matter, it is improper to impose the Court’s opinion on top of the DPC’s.  

A promotion was given to an employee as a mean of encouraging them to raise their game so that the employer can use their experience to further the institution’s development. An employee is to be motivated to perform and deliver to the best of their abilities when they are promoted.  

The court was of the view that withholding a promotion due to valid reasons, such as the pending outcome of a criminal or disciplinary case against the candidate, is now considered an acceptable stance. Because of legal issues in this particular case, the petitioner’s promotion was denied. 

As soon as the legal proceedings came to an end and the Court issued its directive, the petitioner was superannuated by the time the case regarding their promotion was reopened. An employee was no longer eligible for advancement following superannuation. The only way to compensate an employee in such a case is to give them relief in the form of money, provided that the employee is able to demonstrate that their rejection of advancement was unlawful. 

The court determined that the employer’s decision to deny the petitioner a promotion did not appear to have been motivated by illegality, arbitrariness, bias, or malice in this particular case. The Court does not believe that the denial of the petition was incorrect for the same reason.  

Considering the aforementioned, the Court declined to take on jurisdiction over the case. The writ petition was dismissed as a result of its failure. The related applications have been closed. 

 

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Judgment reviewed by Riddhi S Bhora. 

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Supreme Court Decides in Favor of Citizens’ Job Security, Rejects State’s Attempt to Endanger Careers

Case Name: Deependra Yadav and Ors v. State of Madhya Pradesh and Ors 

Case No.: Special Leave Petition (C) No. 5817 of` 2023 

Dated: May 1, 2024 

Quorum: Justice C.T. Ravikumar and Justice Sanjay Kumar 

 

FACTS OF THE CASE: 

The case’s circumstances are such that a single misstep by the State was all it took to start this lawsuit, which will affect a large number of job seekers in the state of Madhya Pradesh. A service regulation that had been in place before was altered on February 17, 2020, and then recalled on December 20, 2021, returning it to its previous state. During this interim period, the changed rule was implemented to a hiring procedure that was still in progress. This led to numerous challenges before the Madhya Pradesh High Court in Jabalpur, which produced a number of rulings and directives that eventually led to the matters that are currently before us. 

For the purpose of selecting candidates for 571 vacancies in the State services, the Madhya Pradesh Public Service Commission (MPPSC) published an advertisement on November 14, 2019, suggesting that candidates follow the Madhya Pradesh State Service Examination Rules, 2015 (abbreviated as “the Rules of 2015”).  

Under the proviso to Article 309 of the Indian Constitution, the Rules of 2015 were formulated in the exercise of power. A preliminary exam, main exam, and interviews were all part of the Madhya Pradesh State Service Examination-2019 that the MPPSC planned to hold in order to fill these positions.  

On January 12, 2020, the preliminary examination was conducted. The preliminary examination was registered by 3,64,877 candidates in total, however only 3,18,130 of those candidates showed up for it. At that point, the State of Madhya Pradesh revised Rule 4 of the Rules of 2015 on February 17, 2020. Before the alteration and to the extent that it is relevant for the purposes of this adjudication. 

It was unexpected that the revised Rule 4 was used in the current hiring procedure for the 571 announced open positions. On December 21, 2020, the results of the preliminary examination that was held on January 12, 2020, were announced using the revised Rule 4. Meritorious candidates from the reserved category were therefore displayed exclusively in their designated reservation categories, and there was no separation of them from those from the unreserved category. On the basis of this, 10,767 individuals passed the preliminary examination. 

During this time, certain candidates contested the provisions of the modified Rule 4(3)(d)(III) of the Rules of 2015 in a series of writ cases filed with the Madhya Pradesh High Court in Jabalpur. The High Court ruled in those cases that the hiring procedure that was started in response to the preliminary examination result dated 21.12.2020 would continue to be contingent on the resolution of the writ petitions by means of an interim order dated 22.01.2021. 

In accordance with this, the MPPSC held the Madhya Pradesh State Service Examination-2019 main exam from March 21–26, 2021. In the meantime, the State of Madhya Pradesh modified the Rules of 2015 once again on December 20, 2021.  

Despite this modification, the MPPSC announced on December 31, 2021, the results of the primary examination, which took place between March 21 and 26, 2021, and the 1918 candidates who met the eligibility requirements for interviews on a provisional basis. On April 7, 2022, a Division Bench of the Madhya Pradesh High Court in Jabalpur, however, partially granted the writ petitions that were still pending. It was approved by a knowledgeable judge of the Madhya Pradesh High Court. 

 

CONTENTIONS OF THE APPELLANTS: 

It was contended that a Division Bench of the High Court received an appeal from three of the petitioners in SLP (C) No. 5817 of 2023, who were upset by this ruling. By ruling on January 25, 2023, in Writ Appeal No. 1706 of 2022, the Division Bench denied the appeal, concluding that the learned Judge’s order was reasonable, correct, and well-reasoned and did not require intervention. 

The appellants also contended that the Madhya Pradesh State Service Examination Rules, 2015, had their Rule 4 amended on February 17, 2020, and then repealed on December 20, 2021. The appellants contested this change. The argument put forth was that the recruitment procedure should not have been subject to the modified rule. 

It was their contention that the recruitment process, which commenced on November 14, 2019, with an advertisement for 571 vacancies, was unfairly affected by the modified rule. On January 12, 2020, a preliminary examination was conducted as part of this process. 

The arguments put up by the appellants most likely concerned the interpretation of constitutional clauses, including the proviso to Article 309 of the Indian Constitution, which provided the framework for the Rules of 2015. 

 

CONTENTIONS OF THE RESPONDENTS: 

The respondents argued that an ongoing hiring procedure was impacted when the State of Madhya Pradesh changed an already-existing service rule that was later recalled. Application to Recruitment: A number of legal issues resulted from the application of the modified rule to the 571 posts that were recruited. 

The Madhya Pradesh State Service Examination Rules, 2015 underwent a recall on December 20, 2021, following the revision of Rule 4 on February 17, 2020. The state also contended that Accordingly, the Madhya Pradesh State Service Examination-2019 main exam was conducted by the MPPSC from March 21–26, 2021. Meanwhile, on December 20, 2021, the State of Madhya Pradesh changed the Rules of 2015 once more.  

The lawsuit was started as a result of the modified rule being applied to the hiring process, which was already in progress. On January 12, 2020, a large number of candidates took part in the preliminary exam for the Madhya Pradesh State Service Examination-2019. 

The learned counsel for the repondent also contended that The preliminary examination results, which were revealed on January 12, 2020, were made public on December 21, 2020, utilising the updated Rule 4. This meant that deserving candidates from the reserved category were only shown in the reservation categories that they were assigned, and there was no distinction between them and applicants from the unreserved field. Based on this, 10,767 people were able to pass the initial test. 

 

COURT’S ANALYSIS AND JUDGMENT: 

The court noted that Madhya Pradesh’s government moved forward based on the results announced following normalisation and that it also gave appointment orders to the chosen applicants, allowing them to begin serving. About the seven petitioners in SLP (C) No. 5817 of 2023, the MPPSC said that only three of them were qualified to take the main examination because they had passed the preliminary exam, according to the pre-revised result dated 21.12.2020. 

Nevertheless, two of them showed up for the primary exam but failed, while one of them did not. Following that, all seven of them were deemed eligible based on the results of the televised preliminary test, which was released on October 10, 2022. However, they were found to be ineligible for the special main examination and the subsequent normalisation process, which was announced on May 18, 2023. 

Notably, the High Court acknowledged that Vaishali Wadhwani and other petitioners had somewhat succeeded in their case because their writ petitions were partially granted by the ruling, which also instructed the MPPSC to combine and harmonise the two lists—the outcome of the special main examination and the first main examination. A Writ was filed before a Division Bench of the High Court, as previously mentioned, challenging the MPPSC’s exact identical judgement. The appeal is currently being reviewed.  

Significantly, the applications submitted by Vaishali Wadhwani and associates, aiming to lift the stay of the judgement of August 23, 2023, were rejected, and their challenge to the ruling was not entertained.  

Additionally, the court pointed out that following the dismissal of the review petitions, the ruling in Kishor Choudhary (previous) was not challenged before this Court. It provided instructions on how to conduct and finish the examination process in compliance with the 2015 Rules as they were written. The later ruling in Harshit Jain (above) supported the process of conducting a special main examination for applicants under the reservation category who were deemed eligible after the preliminary examination result was revised in accordance with the unamended Rules of 2015.  

Based on the aforementioned consideration, the court determined that there is no basis for interference with the contested judgement, dated January 25, 2023, issued by the Division Bench of the Madhya Pradesh High Court in Jabalpur in a Writ Appeal, either on the basis of facts or the law. Because of this, the civil appeal resulting from the current case was deemed to be without merit and was thus rejected. 

 

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Judgment reviewed by Riddhi S Bhora. 

 

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EGS employees not liable to file an Industrial dispute for termination of employment, but is entitled to compensation : Bombay HC

TITLE : Ashok Bhikanrao Deshmukh v The State of Maharashtra

CITATION : W.P 2149 of 2011

CORAM : Hon’ble justice Ravindra V. Ghuge and Hon’ble Justice Y.G. Khobragade

DATE:  28th November, 2023

INTRODUCTION :

A writ of Certiorari and Mandamus was filed by the petitioner regarding his termination of employment against the state.

FACTS :

The petitioner was appointed on the Employment Guarantee Scheme on 1985 and he was terminated on 1987 orally. He raised an industrial dispute in 1994 and the labour court subsequently quashed the termination order and granted reinstatement. The state filed a writ against the impugned award of the labour court, which was then reversed by the single bench judge. However, it was observed by the court that if the petitioner is eligible, he may be considered for Government resolution of 1995. The state deemed him ineligible as he was not employed on 1993.

COURT’S ANALYSIS

It was argued that when the Government resolution scheme was analysed by the Supreme Court, the cut off date was of 1993 and on continuous service. The court has consistently held that EGS recruitments are not continuous employment nor they can raise an Industrial Dispute. But relying upon the judgement of Supreme Court in the matter of Assistant Engineer v Mohanlal, that the employee may be granted of monetary compensation.

The court granted 2,00,000 as compensation for the mere fact that he has been litigating for 37 years as now and has turned 60 years old.

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Written by- Sanjana Ravichandran

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“Equitable Jurisprudence Prevails: Court Upholds Fairness and Consistency in Granting Employee Benefits”

Title: Secretary Administration Rajasthan Rajya Vidyut Prasaran Nigam

 Limited vs Rashtriya Bijali Karmachari Union (INTUC) Rajasthan

Citation: S.B. Civil Writ Petition No.8015/2017

Coram: HON’BLE MR. JUSTICE ASHOK KUMAR GAUR

Decided on: 24-01-23

Introduction:

In this case, the petitioner, who is the employer, has filed a writ petition challenging the award dated 02.12.2016 issued by the Industrial Tribunal in Jaipur. The petitioner’s counsel argues that the Industrial Tribunal was tasked with adjudicating the claim of the respondent-workman concerning his entitlement to a basic salary of Rs.595 on 19.04.1985. The central question is whether the employee is entitled to relief if the specified salary was not paid.

Facts:

In this case, the petitioner-employer challenges an award issued by the Industrial Tribunal, Jaipur, dated 02.12.2016. The petitioner argues that there is a jurisdictional error by the Industrial Tribunal in granting relief to the petitioner by holding him entitled to a basic salary of Rs.580/- per month, as no such reference was made for this specific relief. The petitioner contends that the Industrial Tribunal exceeded the scope of the reference, and such an act is impermissible in the eyes of the law. It is emphasized that the respondent-workman did not pray for the relief of a basic salary of Rs.580/- per month, and there were no pleadings supporting such a claim. The petitioner relies on the Bombay Gas Company Ltd. V. Gopal Bhiva case, stating that the Industrial Tribunal lacks the competence to go beyond the terms of the reference.

However, the respondent-workman argues that the Industrial Tribunal’s award does not warrant interference under Article 227 of the Constitution of India. It is asserted that the relief granted is incidental, permissible under Section 10(4) of the Industrial Disputes Act, 1947. The respondent contends that the Industrial Tribunal rightly considered the principle of equal pay for equal work concerning similarly situated employees and molded the relief accordingly.

The court, after hearing both parties, finds that the respondent-workman’s claim for a basic salary of Rs.595/- per month was rejected, and the Industrial Tribunal, after analyzing evidence, justified the grant of a basic salary of Rs.580/- per month based on the salaries of similarly situated employees. The court concludes that the Industrial Tribunal did not exceed its jurisdiction, and the relief granted was within the scope of the reference. The petitioner’s arguments regarding jurisdictional error and lack of pleadings are rejected, and the court upholds the Industrial Tribunal’s award.

Judgement analysis:

In this judgment, the court rejects the submissions of the petitioner’s counsel, emphasizing that if the court has already settled a controversy regarding entitlement to a particular pay scale for similarly situated employees, it would be unfair to deprive the respondent-workman of the benefit simply because he was not a party in the earlier litigation before the High Court.

The court acknowledges that the Industrial Tribunal considered relevant factors, including pleadings and evidence, in reaching the conclusion that the respondent-workman was entitled to the granted relief. It emphasizes that the award took into account the settled issue regarding the pay scale in question. The court distinguishes a cited judgment (Suresh Chandra vs. General Manager, Raj. State Bridge & Construction Corporation) where the Labour Court’s jurisdiction was deemed to be exceeded. In the present case, the court finds that if the respondent-workman raised a dispute, and the Labour Court, after reference by the State Government, found the relief justified based on the treatment of similarly situated employees, it did not exceed its jurisdiction.

As a result, the court dismisses the writ petition, and no costs are awarded. The judgment underscores the principle of fairness and consistency in granting benefits to employees based on settled issues and comparable cases.

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Written By: Gauri Joshi

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