Case BriefsHigh Courts

Patna High Court: Shivaji Pandey, J. allowed the writ application to the extent that the impugned order was remanded back to the competent authority to consider the claim of the petitioner afresh and take a decision in accordance with law.

The petitioner challenged the order, whereby the competent authority had refused to refer to the industrial dispute raised by the petitioner for adjudication on the ground that the disputant was engaged in the capacity of Sales Manager, and as such he would not qualify to be a workman within the definition given in Section 2(s) of the Industrial Disputes Act, 1947. The petitioner was appointed as Trainee Sales Team Manager, but he claimed to be a workman. A conciliation proceeding was held, but it failed to materialize and ultimately the dispute was denied from being referred to an Industrial Tribunal.

The Court held that the authority while exercising the power of conciliation and consideration to referring the dispute raised exercises a power which is administrative in nature and thus, it cannot exercise the power of adjudication and as such, cannot adjudicate the status of an employee whether he is a workman or not. It was emphasized by the Court that the appropriate authority while refusing to refer the dispute to the Tribunal cannot embark upon adjudicatory mechanism.

The Court was of the view that that authority had usurped the power of a quasi-judicial body and hence, the impugned order stood quashed. The matter was remanded back to the competent authority to consider the claim of the petitioner afresh and take a decision in accordance with law within a period of eight weeks from the date of receipt/production of a copy of this order.

In view of the above-noted facts, the instant petition was allowed accordingly.[Rahul Muzaffarpuri v. Union of India, 2019 SCC OnLine Pat 1264, decided on 05-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. contemplated the writ petition where the petitioner raised questions related to the order of the Labor Court passed in 2014.

The brief facts as involved in the instant writ petition were that the petitioner in the capacity of being an employer as a registered company under the Companies Act, had got different units and plants situated at various places, which required the services of certain workman in order to discharge the industrial work, which the unit had to undertake and in order to get the work performed in an efficient manner they required the services of Tool Room Trainee. Hence, the respondent was engaged as a Trainee with the said company and appointment made of the respondent for Trainee was governed by the terms and conditions of letter of appointment as it was provided in the letter of appointment itself issued. A certain stipend was fixed for the respondent. Subsequently the services of the respondent were put to an end on the grounds that the work and services were not satisfactory. The issue that arose afterwards was resolved between the parties.

Hence, the respondent filed an industrial dispute against the petitioner; consequently a proceeding was drawn before the Conciliation Officer and on the culmination of the said proceedings before the Conciliation Officer under Section 2-A of the U.P. Industrial Disputes Act, reference was sought to be made with regards to an adjudication of the controversy as raised by the workman. Consequently, a reference was made to the effect that as to whether and the act of the employer of dispensing the services of the petitioner as a tool room trainee was just and valid and to what benefit the trainee would be entitled to receive.

Labour Court ultimately by the impugned award had held that the act of the employer of dispensing the services of the respondent by an order was illegal and the workman was directed to be reinstated into the services.

Counsel for the petitioner Sudhir Kumar, submitted that in the said letter of appointment a clause was mentioned where the employer had reserved the rights to terminate the services of the trainee as any desired time without assigning any reason and even with put any prior intimation. He argued that while holding the termination as to be illegal the Labor Court had not treated that it was a reference which was made for defining the status of the workmen, as that of the respondent being of a regular employee.

Labor Court to the particular issue related to the status of the workman held that, it cannot in any manner be interpreted as if the petitioner was providing a regular status to the respondent as the effect of the award would be that as soon as the order was dispensed, the service of respondent was held to be bad in the eyes of the law, it will only give the respondent the same status of that being of a Tool Room Trainee from where he was removed, the post which he had acquired prior to his removal and thus he would be acquiring back the status of that of a Tool Room Trainee only, and the said award cannot be read as if it was giving him the status as that of a regular employee.

The Court observed that the clause of the terms of appointment would not come into play at the stage where the respondent was given a reason for his termination. More particularly, when had it been a simplicitor dispensation of service without attaching any stigma, then the employer could had exercised its power to dispense the services, but as soon as the employer attached a stigma and made any observation affecting the credibility with regards to the manner in which the work was performed by the trainee, it amounted to be a stigmatic order and in that eventuality, the adherence to the principles contemplated under the Industrial Disputes Act or under the principles of natural justice was required to adhere to prior to terminating the services of the workmen.

Hence, it may not be treated to have an effect of providing the status of a regular employee to that of the respondent was absolutely a misconception which was  drawn, because logically even otherwise also, if the order of termination was set aside, it goes without saying that the effect of setting aside of the termination order would only be revival of the status of the workmen, which was existing or he was enjoying in relation to the trainee which was prevailing at the time when the services were dispensed.[L.G. Balakrishnan & Bros Ltd. v. Virendra Singh, 2019 SCC OnLine Utt 646, decided on 02-07-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Arun Bhansali, J.,  allowed the writ petition filed in regard to payment of minimum wages as prescribed for skilled workman under the provisions of the Minimum Wages Act, 1948. 

The facts of the case were that the petitioners were employed as Pump Driver/Operator under Janata Jal Yojana, promulgated by Government of Rajasthan to provide drinking water to the citizens. They sought directions to the respondents to make payment of minimum wages as prescribed for skilled workman under the provisions of the Minimum Wages Act, 1948. They also prayed that the respondents should be directed to release 50% of the minimum wages withheld w.e.f. February 2013. Pawan Singh Rathore, counsel appearing for the petitioners, submitted that the controversy involved in the writ petition was covered by a decision of this Court rendered in Jagdish Singh v. State of Rajasthan, S.B. Civil Writ Petition No. 5954/17, which was allowed with the directions that the petitioners who were employed under Gramin Janta Jal Yojana as Pump Driver/Pump Operator should be entitled to the wages as prescribed for skilled workman by the State of Rajasthan as per the provisions of Minimum Wages Act, 1948. It also directed that the amount of 50% of the minimum wages payable to the petitioners withheld by the respondents should be released forthwith. It was made clear in this case that these directions would apply only to the cases where the scheme in question was floated and implemented and not in any other case. If the scheme Gramin Janta Jal Yojana was not floated in a particular Gram Panchayat, the respondents would not be liable for payment at the rate of minimum wages rather, in that case, if any of the petitioners was employed in other scheme or otherwise, he would be at liberty to approach the authority under the Minimum Wages Act for adjudication of the dispute. 

The Court upheld the decision given in Jagdish Singh case and allowed the writ petition. [Rupendra Singh v. State of Rajasthan, 2019 SCC OnLine Raj 491, decided on 15-05-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Division Bench comprising of Mushir Alam and Munib Akhtar, JJ. while hearing an appeal in relation to the termination of service, held that though a salesman is not a workman, he would be entitled to relief for dismissal of his service under the Payment of Wages Act, 1936.

The petitioner, a sales representative in the respondent company, on being terminated filed a claim under the 1936 Act which was decreed in his favour by the authority. The High Court, in appeal, reversed the decision ruling in favour of the respondent. Aggrieved by the said order, petitioner preferred the present leave petition. The two questions for Hon’ble Supreme Court’s consideration were: (i) whether the petitioner’s claim was maintainable under the Act; and (ii) whether he was a ‘workman’ within the meaning of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

The Supreme Court noted that the Labour Laws (Amendment) Ordinance, 2001 had expanded the scope of the 1936 Act to make it applicable to persons employed in any factory, industrial or commercial establishment. Thus, a person seeking to bring a claim within its scope has to show that he was a ‘person employed’ in a ‘factory or an industrial establishment or a commercial establishment’. The respondent admitted that it is an industrial establishment and petitioner was employed by it. Thus, the claim was maintainable under the 1936 Act.

Relying on its judgment in Pakistan Tobacco Co. Ltd. v. Pakistan Tobacco Company Employees’ Union, PLD 1961 SC 403, the court held that being a salesman, petitioner was not a ‘workman’ within the meaning of the 1968 Ordinance.

Lastly, it was held that the petitioner’s claim being maintainable under the 1936 Act, but he not being a workman in terms of the 1968 Ordinance, did not bar his relief since contributions made by him and the respondent towards the provident fund was covered within the definition of ‘wages’. Therefore, relief could be granted to him under the 1936 Act. [Aurangzaib v. Medipak (P) Ltd., Civil Petition No. 2743 of 2017, decided on 03-10-2018]

Business NewsNews

The concept of fixed term employment defines the tenure of employment as well as other associated conditions of service and remunerations, which are provided to regular employees under various labour laws. The government has extended the facility of hiring workers on fixed term employment to all sectors for improving the ease of doing business for players intending to hire people for completing specified projects, tasks or orders. The facility of fixed term employment was introduced in apparel manufacturing sector in Industrial Employment (Standing Order ) Act in October, 2016.

[Key highlights] As per a notification issued by the labour ministry to amend the Order :-

  • The words “fixed term employment in apparel manufacturing sector” will be replaced by “fixed term employment” meaning that facility would be available/extended to all sectors.
  • The worker employed for short period will get better working and service conditions as compared to a contract worker.
  • No notice of termination of employment shall be necessary in case of temporary and badli workmen.
  • The fixed term employment is defined as a workman employed on a contract basis for a fixed period. Thus the services of the workman will be automatically terminated as a result of non-renewal of contract between the employer and the workman concerned.
  • A fixed term worker would not be entitled to any notice or pay in lieu of that, if his services are terminated or in case of non-renewal of contract or expiry of term of employment.
  • Also a temporary workmen who has completed 3 months of continuous service, shall be given 2 weeks notice of the intention to terminate his employment if such termination is not in accordance with the terms of the contract. In case he has not completed 3 months of continuous service, he shall be informed for the reasons for termination in writing.
  • Any services of temporary nature shall not be terminated as punishment unless the employee has been given an opportunity of explaining the charges of misconduct alleged against him.
  • A separation of service of the workman as a result of non-renewal of the contract of employment between the employer and workman concerned shall not be construed as termination of employment. This facility will aid the industry to employ worker in sectors which are of seasonal nature and witness fluctuation of demand and hence requires flexibility in employing workers.
  • Under the fixed term employment the working conditions in terms of working hours, wages, allowances and other statutory dues would be at par with a permanent workmen and no less than that.
  • A fixed term worker will also be eligible for all statutory benefits available to a permanent workman proportionately according to the period of service rendered by him even though his period of employment does not extend to the qualifying period of employment required in the statute.
  • The employer can directly hire a worker for a fixed term without mediation of any contractor.

[Source: The Economic Times]

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