#labourlaw Archives - Prime Legal

16 Jan

Lawyer shows the scales of justice in hand on a blurred background.

TITLE : Ajit Bhagwan Sawant V M/s Parveen Industries Pvt Ltd.

CORAM : Hon’ble Justice Sandeep V Marne

DATE : 8^th January 2024

CITATION : WP No. 11801 Of 2023

FACTS

The primary issue in the petition is about right of a workman to avail services of a legal practitioners to defend himself in the inquiry process by the labor officer. The appeal is on the basis of the industrial court rejecting the application for permission to defend the workman. The petitioner is working in the defendant company and has been subjected to domestic inquiry. The inquiry officer is a person practicing law and is a qualified advocate. The petitioner claim that the inquiry officer hurried the proceeding without granting enough opportunity to defend him. The petitioner had filed for an interim application under Section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.

LAWS INVOLVED

Bombay Industrial Employment (Standing Orders) Rules 1959 gives the power to another workman or trade union member to defend a workman under enquiry.

Section 21 of the MRTU and PULP act, no workman shall be allowed to appear or act or allowed to be represented in any proceedings relating to unfair labour practices.

ISSUES

Whether the employee can be permitted to engage services of a legal practitioner as a defence representative?

JUDGEMENT

Under the Model Standing Orders imposes a restriction on the right of the workman to choose his defence representative. The court held that the employer has the right to impose such restriction. Further, it was held that as per the provisions of Clause 25 of the Model Standing Orders the defence representative can only be a workman working in the same department or an office-bearer of trade union of which he is a member.

The advocate is not appointed by the company and not an employee of the respondent company.

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Written by- Sanjana Ravichandran

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16 Jan

The Bombay HC quashes industrial court orders with regards to payment of wages

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Blog #bombayhc, #labourlaw, #law, #wages #industraltribunal

TITLE : The Maharashtra State Co-operative V Smt. Bhagyashree Pravin Kulkarni

CORAM : Hon’ble Justice Sandeep V Marne

DATE : 5^th January 2024

CITATION : WP No. 13300 Of 2023

FACTS

The petition was filed by the Maharashtra State Co-operative Marketing Federation challenging the order of Industrial Court. The industrial court granted protection to the respondent in the form of direction to the petitioners to pay wages from the date of transfer to the contractor. The respondent was employed as a typist in the petitioner company on a daily wage basis. The respondent claimed that the action of the petitioners from transferring her from one organization to another was illegal. Despite being transferred, she wasn’t paid as per the new organization standard. The respondent filed that the wage was paid through the previous workplace and not the current one.

ISSUES

Whether the orders passed by industrial court is valid?

JUDGEMENT

The court held that the interim application filed by the respondent is totally baseless. The industrial court held that the wages must be paid as taking effect from the date of transfer. The industrial court also directed the federation to pay wages from the date of transfer again, albeit her drawing wages from the second company. The court also directed to ensure that the increment of 5 years from 2019 is paid to the respondent, from Rs.500 to Rs.600.

The court declared that the industrial court has misdirected and is unsustainable. The respondent is already protected in the form of continuation of services. Further, it was held that the respondent did not contend the same for 5 years, therefore the demand of the respondent is not entertainable.

Written by- Sanjana Ravichandran

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3 Jan

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

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Blog #bombayhc, #employee, #labourlaw, #law, #legalnews, #workmen

TITLE : Rohit Dembiwal v Tata Consultancy Services Ltd

CORAM : Hon’ble Justice Milind N Jadhav

DATE : 2^nd 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.

Written by- Sanjana Ravichandran

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27 Dec

Past records of an employee is irrelevant if the misconduct is grave in nature to award compensation : Bombay HC

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TITLE : Wheels India Ltd. V Ganesh Bajirao Vishwasrao

CORAM : Hon’ble Justice Sandeep V Marne

DATE : 22^nd December, 2023

CITATION : WP No. 992 of 2022

FACTS

Petitioners wheels India has filed a petition challenging Part – II of the award of the Industrial Tribunal directing them to reinstate the respondent from continuing service and pay 50% backwages for the period of march 2014 to December 2015. The tribunal held the punishment of dismissal was disproportionate. The backdrop is that the Wheels India Workers Union demanded for issuance of shares of the company’s permanent employees. Such demand was not met and the work was stopped by the union members through a notice. The respondent was suspended along with other 5 employees for threatening trainees and contract employees to not return to work the following day.

The enquiry officer found the respondent guilty of the charges against him and he was subsequently dismissed from service. The industrial tribunal upon challenging the order by the respondent held that the dismissal proceedings were fair and proper. The second part of the industrial tribunal award was that the dismissal was disproportionate to the charges.

LAWS INVOLVED

Section 2(A)(2) of the Industrial Disputes Act, 1947 talks about the dismissal of employees and provides for the grievance mechanism to approach the conciliation officer after the expiry of 45 days of such application.

“(2) Notwithstanding anything contained in section l0, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.”

ISSUES

Whether the Industrial Tribunal erred in holding that the dismissal was disproportionate?

JUDGEMENT

The respondent in a recent writ petition wanted to challenge the Part 1 of the award as well along with the current petition. The court held that there was a 5 year difference between the challenges and such is unacceptable to be heard. Furthermore, the court held that there is no valid reason to set aside the part 1 of the award as well.

The court held that the misconduct of threatening other employees with a view to ensure non performance of work by them cannot be considered as a minor or insignificant misconduct. The serious and grave misconduct was also proved by the enquiry officer and the past record is irrelevant in such cases.

Therefore the review of the respondent’s past conduct for awarding a compensation and holding the dismissal disproportionate is erred and unreasonable. The court then set aside the 2^nd part of the award given by the industrial tribunal.

Written by- Sanjana Ravichandran

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22 Dec

Employee entitled to compensation although there was misconduct for his long service : Bombay HC on reducing the compensation amount

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TITLE : Raptakos Breet & Company Ltd v Gajanan M. Sonawane

CORAM : Hon’ble Justice Sandeep V. Marne

DATE : 22^nd December, 2023

CITATION : WP No 550 of 2020

FACTS

The petitioner employer has filed a petition challenging the judgement and order passed by Second Labour Court in directing payment of 60% backwages to respondent till his age of superannuation. Petitioner is a pharmaceutical company and the respondent was employed in the services of petitioner company. The respondent was found loitering in the change room instead of being present at his workplace and was chewing tobacco which is strictly prohibited. He was also found verbally abusing other members of the company. Subsequently an inquiry was done and he was dismissed from service. The respondent approached labour court and held that the enquiry was not done in a fair and proper manner according to the principles of natural justice. Furthermore, the court awarded the respondent with 50% backwages till superannuation from the date of termination.

LAWS INVOLVED

44. INDUSTRIAL COURT TO EXERCISE SUPERINTENDENCE OVER LABOUR COURTS. – The Industrial Court shall have superintendence over all Labour Courts and may, –

(a) call for returns;

(b) make and issue general rules and prescribe forms for regulating the practice and procedure of such Courts in matters not expressly provided for by this Act and in particular, for securing the expeditious disposal of cases;

(d) settle a table of fees payable for process issued by a Labour Court or the Industrial Court.

ISSUES

Whether the labour court was right in passing the award for backwages when the respondent is a repeat offender of labour rules in the company?

JUDGEMENT

The court held that under Section 44 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, this court cannot sit on appeal over the said findings. The role of the court is strictly restricted to find whether there is any lack in the findings recorded by the Labour Court or Industrial Court.

The court after going through the list of offences held that the petitioners were only able to prove 2 of the three offences mentioned. The respondent had served with the petitioner for a substantial period of time. He had attained superannuation a in the year 2017. Loss of wage was from 2014 to 2017.

The court held that the Respondent undoubtedly deserves same penalty for misconduct of missing from duty and threatening and abusing a co-employee for the courts decision to pay only 50% backwages.

The court held that lump sum compensation would be adequate relief to the respondent instead of depriving him from wages.

Written by- Sanjana Ravichandran

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Best Lawyers in Bangalore

Defence representative for a workman is not permissible under inquiry proceedings : Bombay HC

The Bombay HC quashes industrial court orders with regards to payment of wages

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

Past records of an employee is irrelevant if the misconduct is grave in nature to award compensation : Bombay HC

Employee entitled to compensation although there was misconduct for his long service : Bombay HC on reducing the compensation amount