AMBIT OF STANDING ORDERS
Can an employer dispense with the services of an employee on the basis of misconduct which is not mentioned in the standing orders ?
Earlier the Supreme Court in the case of M.S. Dhatwal vs.Hindustan Motors Ltd. has held that the misconducts as mentioned in the standing orders are not exhaustive. But in another case the Supreme Court overruled its earlier decision and held that the misconducts mentioned in the standing orders were exhaustive and a workman could not be punished for an act or omission which was not described as a misconduct in the standing orders. The facts of the cases before the Supreme Court pertained to the misconducts whereby the striking workers had man-handled the loyal workers who were coming from the factory in the bus.
Reference
Glaxo Laboratories vs. P.O. Labour Court, Meerut & Others AIR 1984 (SC) 5Q5; 1983 Lab, IC 1909.
APPLICABILITY OF STANDING ORDERS
Whether the Industrial Employment (Standing Orders) Act, will cease to apply to an establishment if the number of workers falls less than minimum limit as prescribed under the Act ?
Once the Industrial Employment (Standing Orders) Act becomes applicable to an establishment, it does not cease to apply on account of a subsequent fall in the number of workmen in the establishment.
Reference
Balakrishna Pillai vs. Anand Engineering Works (P) Ltd., 1974-II LLN 199 (Bom.HC).
ADVANTAGES OF GOOD WORKING CONDITIONS
Do good conditions of work in an industry play an important role in establishing the industrial peace and increasing productivity of the workers?
The conditions under which workers perform their tasks have a great influence on their health, efficiency, ways and industrial relations. The presence of good and healthy working conditions bring about a contended labour class, besides increase in productivity of the workers through an increase in his efficiency, lowering down the heavy rate of absenteeism and high labour turnover to rather minimum, as these give permanency to the laborers to reside near the work place. On the contrary lack of good working conditions result in a discontended labour force, fall in efficiency and in production, high rate of labour turnover and absenteeism besides widening the gulf between the employers and employees and such conditions compel the workers to leave the factories and visit their village as often as possible to get relieved of the tensions of the industrial life. The enlightened employers have felt the necessity of improving working conditions of their own accord, while others have rarely done more than that they are forced to do by law and even this much provision is evaded in certain cases.
AUTOMATIC CONFIRMATION OF A PROBATIONER
Whether completion of probationary period would amount to automatic confirmation of a probationer?
The completion of the probationary period does not automatically amount to confirming the service of the incumbent, though it may have an effect of vesting in the office, a qualification for substantive permanent appointment. In one case, it has been held that the petitioner, who merely continued in the job after/ completion of the period of one year's probation, must be deemed to have been only on probation without the issue of a fresh appointment or order of confirmation and therefore he cannot claim that he must be deemed to have been confirmed.l,2 The Allahabad High Court has held that the function of confirmation implies exercise of judgment by the confirming authority on overall performance and suitability of the probationer which is to be taken into consideration to reach at a definite conclusion as to whether the services of a probationer be confirmed or terminated. No doubt after completion of his one year of probationary period even if the Bank has found his services suitable and permitted him to continue, but in the next year his services may not have been found fit for absorption and while considering his overall performance, if the Bank has terminated the services of the probationer, the same cannot be said to be illegal or unjustified.3 The Gujarat High Court has also held that completion of the period of probation will not entitled the person concerned to claim confirmation as a matter of right since a specific order of confirmation is necessary before a probationer could claim that he should be treated as a regular employee.4
Referente
1.Ramapal Mandoda vs. Life Insurance Corpn. of India, Hyderabad and Bombay, 1976(32) FLR 224; 1976 lAb.lc 960;48 FJR305; 19762 LLj 4 341; 1976(2) LLN 34l.
2.B.K. Sharma vs. State of Uttar Pradesh, 1976(32) FLR 280.
3.Mustafa Ansari vs. Kisan Gramin Bank & Ors. 1992 LLR 234 (Allahabad High Court).
4.Edwin A. Daniel and Another vs. Labour Court Coimbator<;. and another 1993 LLR 366 (Gujarat High Court).
AUTHORITY TO PASS TRANSFER ORDER Who is competent to pass the order of transfer of an employee ?
The order of transfer can be passed only by the appointing authority who can also terminate the services of an employee. The power is only in the employer, which means that only employer or a person either expressly authorised by him or one who can be said to have that authority impliedly to exercise that power. Thus a manager or a person in general control of the business or of the administration of the undertaking of the employer, such as the Board of Director or a Managing Director, where the employer is a corporate body, would have the implied authority from the employer but other officers, more so subordinate officer, would not be taken to have the implied authority from the employer. When a Superintendent has no power in absence of delegation, the transfer made by him is unauthorised.
References
1. Standard Vacuum Oil Co. Ltd. vs. Their Employees, 1954-II LLj 455.
2. K. Krishnamurti vs. Union oflndia, 1971 Lab. & IC 1023.
3. Ram Swaroop Nathan vs. State of Bihar, 1969 Lab. & IC 900.
WHAT AMOUNTS TO BREACH OF DISCIPLINE
Can an employee be punished for breach of discipline if he fails to vacate the quarter allotted to him by his employer ?
Yes. Unless there is a stipulation to the contrary. When an allotment of a tenement was made to an employee on the condition that breach of the terms of allotment would entail eviction of the allottee, even a deliberate breach of such contract cannot be deemed to be a breach of discipline warranting disciplinary action. Only action for eviction of the employee can be taken.
Reference
Nandita B.Palekar vs. YS. Kasbekar and others, 1985-11 LLN 336 (Born. HC).
CHALLENGING ORDER OF TRANSFER
Under what circumstances an employee can challenge the order of transfer ?
In accordance with the terms and conditions of employ¬men t, the services of an employee can be transferred from one place to another. An employee can challenge such a transfer on the ground that such an order is mala fide In one case, the services of an employee were transferred from Madras to Ahmedabad. The employee challenged the transfer order but he could not furnish the material to conclusively establish that such an order was mala fide or an act of victimisation, it has been held that the order was passed by the management strictly in accordance with the contract of employment.
Reference
B. Gopalakrishnan vs. The Management of lndian Potash Ltd. and others, 1981 Lab. IC805 (Madras HC); 1984-1 LLN 567; (1984) 1 Mad.LJ 218.
CHANGE IN WEEKLY OFF DAY DUE TO CHANGE IN SUPPLY OF ELECTRICITY
Will it be necessary that 21 days notice be given to the appropriate government notifying the change in the conditions of service of the workers if an employer has to change weekly off day due to change in the supply of electricity.
No such notice under section 9-A will be necessary in the given circumstances. In one case the company has changed the weekly rest day from Sunday to Monday due to partial load shedding, it has been held that where notice was given for the change of weekly rest day under section 65 of Factories Act to the authority concerned, such change of weekly rest day will not come within the mischief of section 9-A of Industrial Disputes Act
Reference
Sommuggar Jute Factory Company 1"tq.:(North Mill) vs. Workmen and others, 1982-11 LLN 88 (Cal. HC).
CHANGE OF SERVICE CONDITIONS
At times an employer has to change conditions of service because of new enactment or amendments. Whether 21 days' notice as provided under section 9-A of Industrial Disputes Act will be necessary when there is change by the law ?
Not necessarily. The opening words of section 9-A indicate that notice required to be given under the provision would apply, if an employer proposes to effect change in conditions of service become applicable to the employees by operation of law. In a decided case, the ESI scheme has come into force by operation of law and the management is only informing that fact to the employees. Hence provisions of section 9-A are not applicable.
Reference
All India Tourism Development Corporation Employees' Union (Unit Hote! Ashok) Bangalore and others vs. Hotel Ashok Bangalore and others, 1984 Lab. ICNOC 107; 1984-1 LLN 659 (Kar. HC).
CONDITIONS OF SERVICE-MEANING OF
What is meant by conditions of service of an employee?
The Supreme Court has observed that the expression 'Conditions of Service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters of pension etc.
Reference
State of Punjab us. Kailash Nath, 1989-1 CLR 60.
CONFIRMATION OF PROBATIONER
Whether completion of the probationary period would mean automatic confirmation of a probationer ?
The completion of the probationary period does not amount to automatically confirming the service of the incumbent though it may have an effect of vesting in the officer, a qualification for substantive permanent appointment. In one case, it has been held that the petitioner, who merely continued in the job after completion of the period of one year's probation must be deemed to have been on probation without the issue of a fresh extension letter. Therefore he cannot claim that he must be deemed to have been confirmed. 2 The Allahabad High Court has held that the function of confirmation implies exercise of judgment by the confirming authority on overall performance and suitability of the probationer which is to be taken into consideration to reach at a definite conclusion, as to whether the services of a probationer be confirmed or terminated. No doubt after completion of his one year of probationary period even if the Bank has found his services suitable and perm to continue, but in the next year his services may not
found fit for absorption and while considering his overall performance, if the Bank has terminated the services of the he same cannot be said to be illegal or unjustified.3
Reference
1.Ramapal Mandada us. Life Insurance Corporation of India, Hyderabad and Bombay, 1976 (32) FLR 224; 1976 Lab. 1 C 960; 48 fJR 305; 1976 2 LLJ 311: 1976(2) LLN 341.
3.Mustafa Ansari vs. Kisan Gramin Bank & others, 1992 LLR 234 (Allahabad High Court).
CONFLICT BETWEEN THE STANDING ORDERS AND APPOINTMENT LETTER
Will an appointment letter issued to an employee providing probation period more that what is specified in the certified standing orders have the binding effect ?
The terms and conditions of employment in the certified standing orders cannot be negatived to a workman by conditions contained in his letter of appointment. For instance if the certified standing orders provide that the services of an employee cannot be retained on probation for more than six months and the appointment letter provides probation period nine months and if the probationary services of an employee are terminated after six months the termination will be illegal.
References
I. Printers House (P) Ltd., Ballabgarh vs. State of Haryana and others, I982•Il LLN 327.
2. The V.P. Cooperative Spinning Mills Ltd. Etawaha VS. State of V.P. & others, 1978 Lab.IC 1137 (All. HC).
3. Indian Institute of Technology, New Delhi vs.jawahar Lal Momtani, 1985 Lab.IC 3 (Delhi HC) .
4. PonnuswatI1y (R) vs. Labour Court, Coimbatore and others, 1989 LLR 280
CONTRACT FOR A SPECIFIC PERIOD
Sometime contracts / agreements are made between an employer and an employee whereby employee agrees to work for a specific period. Whether such an agreement is permissible under the law ?
Where the parties to a contract meant that a penal amount will become due on breach of the contract, the real damage not exceeding the penal amount can be incorporated by the employer in the contract of employment for a specified period. If the amount has been fixed as a measure of damages to avoid any future difficulty to ascertain the amount so named can be recovered. In one case, the associate professor and head of the department of Ophthalmology was granted leave to go abroad on execution of a bond whereby he was to pay certain damages on failure to resume duties, it has been held that the professor along with his sureties was liable to pay the amount as agreed in the bond. The amended definition of 'retrenchment' under the Industrial Disputes Act also provides that the termination of service of a workman as a result of non-renewal of the contract of employment between an employer and the workman concerned will not amount to retrenchment. Thus an inference can be drawn that such con tracts of service for a specified period are permissible.
Reference
Post Graduate Institute of Medical Education and Research, Chandigarh vs. Dr.J.S. Gupta, 1984 Lab. IC 159.
(xiv) DEMANDING STATEMENT AFTER CALLING OFF STRIKE
Can an employer insist upon the employees to give a statement in writing that they have gone on illegal strike before allowing them to resume their duties after calling off the strike ?
No. It is absolutely unwarranted. An employer cannot insist upon the employees to give a statement that they have gone on strike. Insistence for such a statement from the workers by the employer after the strike has been called off would amount to change in conditions of their service without complying with the provisions of section 33 of the Industrial Disputes Act.
References
1. Swastic Textile Engineers Pvt Ltd., Ahmedabad vs. Rajen Singh Sant Singh and others, 1984 Lab. and IC NOC 139 (Guj); 1984(1) 25 Guj. LR 470; (1984) 2 LLj 97.
2. Anantharaman Rama & others vs. K.N. Vani and others, 1982 (44) FLR 189.
(xv)EFFECTING RETRENCHMENT-WHETHER CHANGE IN CONDITIONS OF SERVICE
Will retrenchment of workmen by the employer attract the provisions of Section 9-A of the Industrial Disputes Act inter-alia providing notice of change in conditions of service of the workman ?
Yes. In one case, the Rajasthan High Court has held that while reducing the number of Conductors and retrenching them will attract the provisions of Section 9-A of the Industrial Disputes Act. The reason being that the retrenchment as a result of rationalisation is,provided at item No. 10 in Schedule IV appended to the Industrial Disputes Act.
Reference
Mohan Singh vs. Rajasthan State Road Transport Corporation and another, 1993 LLR 281 (Raj. HC).
(xvi) EXTENSION OF SERVICE AFTER RETIREMENT
Can an employee claim extension of service after his retirement ?
No. Extension of service of a retired employee depends upon the discretion of the employer. In one case, the Supreme Court has held that there is no vested right of an employee to claim and get extension. The Division Bench of the Madras High Court has held in one case that an employee has no right fundamental or otherwise to get extension after age of superannuation. It was further held that the exten tion of selVice was dependent on exigencies of service and discretion of employer.
References
1. State Bank of Bikaner &Jaipur vs. Mohanlal, 1988(57) FLR 641 (SC); 1989 (74) FJR 100.
2. M.K Chubey Raj vs. State Bank of India, 1990 (76) FJR 43.
(xvii) FIXATION OF AGE OF RETIREMENT
Is there any rule for fixing the age of retirement?
Is there any rule for fixing the age of retirement?
No. There is no hard and fast rule infIxing the age of retirement. The decision would always depend upon a proper assess¬ment of all relevant facts which may conceivably from case to case. However, much will depend upon the actual assessment of the nature of work of the operatives to find out whether the,work is really
arduous or hazardous.
Reference
1. I.C.J.(P) Ltd. 1970-II LLJ 716.
2. Report of the Central Pay Commission (Second) at pp. 444-45.
(xviii) IMPLIED CONFIRMATION OF A PROBATIONER
Will a probationer be impliedly confirmed on the expiry of initial or extended period of probation ?
Confirmaion of a probationer depends upon the conditions of service. In one case, an employee was appointed on probation for one year which was extended by six months in accord¬ance with the Regional Rural Bank and Gurgaon Gramin Bank Staff Regulations. The regulation provided that at the end of the period of 18 months either the services of the probationer should be confirmed or he should be discharged. In the above mentioned case, the probationer was not discharged at or before the expiry of the maximum period of probation thus there would be an implied confirmation as there was no statutory indication as to what should follow in the absence of express confirmation at the end of even the maximum permissible period of probation. It would amount to confirmation by implication. In another case, the maximum probation period of probation has been prescribed for 1-1(2 years which expired on 3.11.1988 and as such it has been held that the probatio¬ner stood automatically confirmed.2
References
1. M.K. Aggarwal vs. Gurgaon Gramin Bank & ors., AIR 1988 SC 286; 1988(1) CLR379.
2. Mrs. jyotsana Raina vs. Tamilnadu Handicraft Development Corp. Ltd. & others, 1991 LLR 703 (Delhi High Court).
(xix) INCREASING.PRICES IN CANTEEN
Will it amount to change in conditions of service of the employees if the employer in creases the rates of the eatables available to the employees in the factory canteen ?
The management is well within its right to increase the prices of eatables etc. without giving notice under section 9-A of the Industrial Disputes Act. In a case, it has been held that the canteen facility, given to the workmen at concessional rates for over several years was merely a welfare facility and could not demand to be a condition of service of the workmen. The management may revise the rate of food i terns unilaterally when the prices of the food items have risen rapidly.
Reference
Blue Star Workers Union vs. Blue Star and others, 1990(61) FLR (Bom.HC); 1990 LLR 543.
(xx) JURISDICTION OF CIVIL COURTS VIS-A-VIS TRANSFER
Under what circumstances the civil court can grant temporary injunction against transfer of an employee?
It is very well settled that an injunction is g,ranted during the pendency of a suit on the following principles:
(i) There is a serious question to be tried in the suit and that on the available facts, there is a probability of the plaintiff 'being entitled to the relief.
(ii) The Court's interference is necessary to protect the
plaintiff from irreparable injury ,
(iii) The comparative mischief or inconvenience which is likely to cause from refusing injunction should be greater than that which is likely to arise by granting it.
Applying the above texts it has been held by the Madras High Court that it cannot be said that the petitioner could make out a prima facie case nor could he always satisfy that the balance of convenience was in his favour.
Reference
Sivalingilm (M) vs. 'EID Pilrry India Ltd. (by its General Manager) Ranpipet, 19891 LLN 118 (Madras H C).
(xxi) JUSTIFICATION OF DIFFERENT WORKING HOURS FOR STAFF AND FACTORY WORKERS
Can there be different working hours for the staff and the factory i!1Ufkers ?
The equality before law does not mean that every law must have universal application for all persons who are not by nature, attaimnent or circumstances on the same position as the varying needs of different classes of persons constitute violation of Article 14 of the Constitution. The management can adjust or vary the hours of work of the employees within the limits prescribed by
law. Since the working of the clerical staff in the administrative side are not directly concerned with the working of the plantas they have different sets of working hours, there is no violation of Article 14 or 16 of the Constitution in fixing different working hours for clerical staff. This view has been taken by the Madhya Pradesh High Court.
Reference
AJ. Verghese and others vs. Bharat Aluminium Company Ltd. and another, 1986 (69) FjR 394 (M.P. HC).
(xxii) MAINTENANCE OF DIARY
Is it within the right of the employer to ask the employee to maintain diary for daily out-put of work ? Will it amount to breach in conditions of service?
In one case, workers were maintaining diaries showing the out-turn of their daily work, but afterwards they merely affixed their signatures to the record of the work done from day-to-day. Ultimately they refused to do so when asked by the employer to make compliance. Ithas been held that the employer was competent to ask the worKers to authenticate a list and to sign some papers containing a record of the work done by day.
Reference
Phoenix Plywood, Kottayam vs. Industrial Tribunal, A1leppey & others, 1979 Lab. IC 422 (Ker. HC), ILR (1979) 1 Ker. 244; (1979) 38 Fac. LR 153; (1979) 1 Lab. Lj 386; 1979-1 LLN 480; 1979 Ker. LT 408.
(xxiii) NOTICE OF CHANGE
When a notice oj change under section 9-A of the IndustnalDisputes Act is essential?
Clause (a) of section 9-A of the Industrial Disputes Act provides for notice to be given to workmen who are likely to be affected by the proposed change in the conditions of service. Therefore, the requirement ofa notice will arise only if the workmen are likely to be affected by the proposed change. The main consideration will be as to whether the workmen could he said to be affected irrespective of whether the proposed change is prejudicial to them
or not. Where the weekly hours of work of the workers were reduced from 66 to 54 by the employer, it has been held that no notice of change as required under section 9-A of the Industrial Disputes Act.
Reference
Indian Security Press Mazdoor Sangh vs. Currency Note Press, Nasik Road & others, 1987-II CLR 310.
(xxiv) OCCUPATION OF COMPANY-PREMISES
Can an employer invoke the provisions of sect ion 630 of the Companies Act if an employee of a company possessing the property of the company has ceased to be an employee of the company?
It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment. That appears to be one of the functions of Clause (b) of section 630 of the Companies Act. It would be noticed that Clause (b) also makes it an offence if any officer of a company having any property other than those expressed or directed in the articles and authorised by the Act. Thatwould primarily apply to the present officers and employees and may also include past offices and employees. There is, therefore, no warrant to give a restrictive meaning to the term 'officer or employee' appearing in sub-section (l) of section 630 of the Act. It is quite evident that the Clauses (a) and (b) are separated by the word 'or' and, therefore, are clearly disjunctive. Hence, even these employees who have left the employment of the company will be liable for appropriate penal action if they fail to vacate the premises in their occupation which were allotted or given to them by the company.
Reference
Baldev Krishna Sahai Vs. Shipping Corporation oflndia Ltd. and another, 1989 (58) FLR 142 (S.C.).
(xxv) POWERS OF COURTS TO INTERFERE WITH ORDERS OF TRANSFER
How far the courts can interfere with the employer's orders of transferring his employees ?
The powers oflabour courts/industrial tribunals to interfere with the order of transfer of an employee from one station to another are very limited. Ordinarily, it would be proper for them to accept as correct any submission by the employer that the impugned order of transfer was made only because it was found unavoidable in the interest of the business. In such cases, the submission of the employer that the transfer was unavoidable must be accepted without calling upon him to lead positive evidence. The only exception to this principle is the case where there is reason to believe that the employer resorted to the transfer of the employee mala fide, by way of victimisation, unfair labour practice or due to some other ulterior motive not connected with the business interest of the employer. In other words, the power of transfer from one station to another or from one establishment or branch to another can be exercised only when such transfer is in the interest of the business.
The order of transfer is liable to be set aside only if it is showing that it has not been effected bonafide or for ordinary and normal reasons of trade or business but has been the result of an unfair labour practice. The orders of transfer are generally challenged on the ground of victimization, unfair labour practice, or mala fide, t.qe employees have to lead positive evidence to show that they were transferred because of their trade union activities. The position is the same when an order of transfer is challenged on compassionate ground. The compassionate ground also has to be considered in the background of administrative interest which is also one of the vital consideration to be taken into account. For instance, when the transferred employee can arrange for his residence or for an alternative place where he can stay after retirement from his service. And when the place where he was transferred is not far off from the place of his transfer and can be travelled and returned back to on the same day then the ground that he has no son but six daughters athis disposal of which three are marriageable daughters keeping in view the administrative exigency cannot be accepted in undoing an order of transfer, which has been made in accordance with terms and conditions of service.
References
1. Canara Banking Corporation Ltd. vs. U. Vittal, 1963-II LLj 354 (SC); (1963) 7 Fac. LR 184; (1963) 2 SCWR 84; (1964) 3 SCR 268; (1963-64) 25 FJR 64.
2. National Radio Corporation vs. Their Workmen, 1963-1 LLj 282 (SC); (1963) 6 FLR358.
3. Madhuban Colliery vs. Their Workmen, 1966-1 LLj 738 (SC); (1966) 12 Fac. LR274.
4. P.Dutta vs. Union oflndia & Ors., 1983 LLR 153; 1983 Lab. IC 1648 (Cal.HC).
Also see Shanti Kumar, 1981 Lab. IC II02 (SC); AIR 1981 SC 577; (1981) 2 SCC 72; (1981) SCC (Lab.) 285; (1981) 2 Lab. LN 485; (1981) 2 Servo Lj 435;43 Fac.LR 263, Tamil Nadu Mercantile Bank Ltd. Tuticorin & another vS. T. Venkatesan 1992 LLR 544 (Madras High Court).
(xxvi) PROMOTION AND DISCRETION OF MANAGEMENT
Is it the absolute discretion of the management to promote an employee ? Under what circumstances the industrial adjudiMtors can interfere?
Promotion of a workman is a managerial function. However, it must not be on the subjective satisfaction of the manage¬ment but must be on some objective criteria. There should not be unjust or arbitrary or unreasonable upgrading of persons supersed¬ing the claims of persons who may be equally oreven more suitable. There should not be victimisation. If there are aggravating circumstances, the individual adjudicators can interfere and cancel the promotions made by the management, where it is felt that the persons have been superseded on account of mala fides or victimisation.
Reference
Ajudhiya Sugar Mills Mazdoor Sabha us. Ajudhiya Sugar Mills Raja Ka Sahospur, Moradabad & others, 1983 Lab.1CNOC47 (All); (1982) 2 Lab. LN 831 (All.).
(xxvii) CRITERIA FOR PROMOTION
What is meant by overall performance of an employee when he is being considered for promotion ?
The overall performance of an employee has to be taken into consideration during the tenure of his service and not for the year goneby only. In a case it has been held that the overall perform-
ance of an employee for all the nine years will be considered and not that of the last three years.
Reference
RS. Patel and others vs. Gujarat Electricity Board and others, 1985 Lab. IC (NOG) 29.
(xxviii) REDUCTION OF OVERTIME ALLOWANCE
Whether reduction in the rate of overtime allowance can bepermitted without complying with the provisions of section 9-A of the Industrial Disputes Act ?
No. Where in case, the employees of Food Corporation of India were governed by Bombay Shops and Establishments Act, 1948 and getting overtime allowance as per the said Act. However, the government issued a notification under section 63 of the Shops Act totally exempting Food Corporation of India from the said Act. The management issued direction to its various units that overtime allowance henceforth will be payable as per instructions issued by the Food Corporation of India or Government of India. Since it amounted to change in conditions of service, the employees challenged the same; The Bombay High Court has held that it cannot be an answer to say that section 9-A of the Industrial Disputes Act lays down mere procedure. If mere procedure is a pre-condition for affecting a vested right that can be offered only by following the procedural requirements. In order to do away with the benefits which the workers had secured, it was necessary to give a notice of change as required under section 9-A of the Industrial Disputes Act.
Reference
Transport & Dock Workers Union and others vs. Food Corporation of India and another, 1986 (53) 47; 1986 Lab. IC 1393; 1986 (2) LLN 681.
(xxix) RIGHT TO WORK OVERTIME
Whether a workman has got a right to work overtime? Will it amount to change in conditions of service if the employer stops giving overtime work to his workmen ?
It is well settled matter that no workman has the right to overtime work, which is necessitated by the exigencies to be determined solely by the employer. Merely because for a length of time of whatever duration, the shifts were so arranged as to include also the overtime hours of work that would not confer on the workman a right to overtimework.Just as the employer initiates overtime work, he has a right to withdraw it unilaterally. No notice of change as stipulated by section 9-A of the Industrial Disputes Act will be necessary.
Reference
India Security Press Mazdoor Sangh vs. Currency Note Press, Nasik Road & others, 1987-II CLR 31 O.
(xxx) RIGHT TO RE-ORGANISE BUSINESS
Does an employer have an absolute right to re-organise his business?
The Supreme Court has held that an employer has a righ t to re-organise his business in the manner he pleases. In one case, the management decided to shift the manufacture of a particular product from one place to another due to exigencies of a trade. It has been held the right of the employer to re-organise its work in the manner it pleases is well established.2 The Kerala High Court has also held that it is for the management to decide the strength of its labour force. The number of workmen required to carry out efficiently the work involved in an industrial undertaking must always be left to be determined by the manage men t in its discretion. 3
References
1. Parry & Company, 1970-11 LLj 429, AIR 1970 SC 1334; 21 FLR 266; 1970 Lab.IC 1071.
2. Hindustan Lever Employees' Union vs. State of Maharashtra & Ors., 1989 LLR 446 (Born. HC).
3. Muslim Printing & P. Co. Ltd. vs. Secretary to the Gavt. 1992 LLR 680; 1992 (2) CLR 450; 1992 (2) LLN 544 (Kerala High Court).
(xxxi) RETIREMENT/DISCHARGE DUE TO ADVANCED AGE
Can an employee be discharged from service because of his advanced age?
An employee cannot be discharged from service merely because of advanced age unless there is a provision to the contrary in the agreement or rules of the company or in the standing orders. In the absence of a provision to this effect, discharge would amount to wrongful termination. However, an employer can discharge an employee on ground of continued ill-health. Such a discharge from service is excluded from the definition of retrenchment as defined by section 2(00) of the Industrial Disputes Act.
Reference
Desikechari vs. The Mail, 1961-II LLJ 771; National Steel and Metal Works (P) Ltd. vs. Their Workmen, 1961 (2) FLR286.
(xxxii) WITHDRAWAL OF RESIGNATION
Can an employee withdraw his offer of retirement/resignation ?
It is well-settled that an employee can revoke his resigna¬tion or offer to retire before its acceptance by the appropriate authority. In a decided case the petitioner applied for leave and the leave was not granted and he exercised his option to retire and was granted leave preparatory to relirement.
When the grant ofleave is linked with his offer to retire, he might not have been granted leave otherwise because even though the leave may be due, the employee is not entitled to the same as a matter of right. The employee cannot avail of the leave and revoke his offer to retire. In a case an employee tendered his resignation on Feb.24, 1983 to be effective from May 25, 1983. His resignation was, however, accepted on 2nd April, 1983 much earlier than what was specifically requested by the employee. And it was held that employer cannot deprive the employee to withdraw his resignation.
References
1. Balmukund Oriya vs. State, AIR 1970 Orissa, 130. Rajkumar vs. Union oflndia, 1960 SC 180. Also see: Union of India and others vs. Gopal Chandra Mishra Conditions of Service / Standing Orders 269 and others, 1978 SCC L&S 303; 1978 Lab. lC 663; AIR 1978 SC 694: 37 Fac.LR 16; 1978-1 LLj 492 (SC).
2. K.R. Raghuveer vs. The General Manager, Vijaya Bank and another 1987 Lab. IC 98; 1986 (2) LLN 739 DB (Kar); 1986 (69) FJR 148.
3. Rewa Sidhi Gramin Bank & Others vs. Rajendra Prasad Saxena 1993 LLR 560 (Madhya Pradesh High Court).
(xxxiii) WITHDRAWAL OF POST DATED RESIGNATION
When does a resignation become effective? Can it be withdrawal before its acceptance by the employer ?
When does a resignation become effective? Can it be withdrawal before its acceptance by the employer ?
It depends upon the facts of each case. In one case, by a letter dated 7.1.1986, a permanent employee of the bank, sent his resignation to be effective from 30.6.1986. The management of the bank informed the employee by a letter dated 7.2.1986 that his resign alton was accepted by waiving the condition of notice. The employee filed a writ petition in the High Court challenging the action of the management of the bank and prior to hearing of the writ petition withdrew his resignation. The High Court held that the management of the bank could not accept the resignation before the expiry of the notice period. In the appeal as filed by the bank against the order of the High Court, the Supreme Court held that the proviso 2 of Regulation 20 should not be interpreted to enable the bank to thrust resignation of an employee with effect from the date different than one which can make his resignation effective under the terms of said Regulation.
It was further clarified that the resignation is a voluntary act of an employee. He may choose to resign with immediate effect or with a notice of less than three months if the bank agrees to the same. He may also resign at a future date on the expiry, or beyond the period of three months but for this, no further consent of the bank will be necessary. The court observed that it is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. On the terms of the letter read with Regulation 20, it is open to the employee, on general principles to withdraw his letter of resignation before it becomes effective.
Reference
Punjab National Bank vs. P.K. Mittal, 1989 LLR Vol. XX 194.
(xxxiv) RETIREMENT AGE AND STANDING ORDERS
The Model Standing Orders under Industrial Employment (Standing Orders) Act have provided age of superannuation. Will such a provision be automatically applicable to an industrial establishment having certified standing orders ?
Rule 2 of the Industrial Employment (Standing Orders) Cen tral Rules were amended in 1983. But they will not apply to an industrial establishments already having certified standing orders without such a provision. Unless an amendment is sought in the certified standing orders, the provision with regard to retirement will not apply automatically.
Reference
Raju (M.C). vs. Karnataka Vidhyuth Karkhane Ltd., Bangalore, 198~I LLN 198 (Karn.HC).
(xxxv) SECTION 9-A-NOT APPUCABLE IN ALL CASES
Will section 9-A of the Industrial Disputes Act be attracted in every change of conditions of service of a workman ? VVhat will be the position when the channels of promotions of an employee are changed by the employer ?
The provisions of section 9-A of the Industrial Disputes Act, 1947 will not be attracted in every case. When there was no increase or reduction in the number of persons employed but only chanuel of promotion was changed, it has been laid by the Allahabad High Court that the provisions of Section 9-A of the Industrial Disputes Act could not be attracted. It was further held that promotion to higher posts dealt by the modified scheme of promotion of the Reserve Bank of India did not fall within the purview of any of the entries contained in Schedule IV. Consequently notice as contemplated by section 9-A was not necess¬ary. The said ratio has also been relied upon by the Bombay High Court in another case.
References
1. G.P. Whal vs. The Manager, Reserve Bank oflndia, Kanpur, 196~Lab. 1 C 738; 1982 (45) FLR 461.
2. Life Insurance Corporation of India vs. All India Insurance Employees Association and others, 1989 (58) FLR 149 (Bom.He).
(xxxvi) 6-DAYWEEKINSTEAD OF 5-DAY WEEK-NO CHANGE IN CONDmONS OF SERVICE
Whether working of 6 days instead of 5 days amounts to change in conditions of service?
It depends upon the circumstances and facts of each case. In one case, the petitioner contented that their service conditions were altered in violation of the provisions of Section 9-A of the Industrial Disputes Act since the other employees were having 5-days week. The fact remained that the petitioners themselves submitted to be posted at the Guest House of the respondent. The petiti~ers were directed to work on six days a week since the said establishment provides six days working, which did not amount to change in the service conditions and the provisions of Section 9-A of the Act as held by the Calcutta High Court in one case.
Reference
Coal Employees Union and others vs. Coal India Ltd. and others, 1992 LLR 923 (Calcutta High Court).
(xxxvii) STOPPAGE OF ANNUAL INCREMENTS
Can an employer .withhold or stop the increments to an employee ?
Annual increments are usually automatic in case of work¬ers of graded scales in organised sectors till efficiency bar or the maximum of the scale is reached. However, if the workers are employed on daily wage or piece-rate basis, the question of annual increments hardly arises. Also in the absence of scales/grades, the annual increments cannot be claimed by the employees as matter ofright. The penalty of withholding or stoppage of increment can be imposed only after the worker concerned has been informed in' writing of the proposed action together with allegations and given an opportunity to make any representation that he may wish to make. This punishment is imposed only for proved inefficiency or acts of misconduct, such as, insubordination or habitual negligence. The Madras High Court has held that before awarding any serious punishment like withholding of two increments, the management should consider the factum of gravity of misconduct, the previous record of the workman concerning extenuating or aggravating circumstances that might exist. The requirement for imposing this penalty of withholding annual increment has been laid down by the Government ofIndia. In pursuance of Explanation II to sub-section (i) of Section 7 of the Payment of Wages Act, 1936, with the object that any rule framed by an employer must conform to these requirements.2 In one case, it has been held by the Mysore High Court that withholding of annual increments of the employees will not amount to alteration of the conditions of service of the employees under Section 33A ~fthe Industrial Disputes Act but the employees can challenge the reasonability of such alteration in a reference under Section 10 of the Act.
ferences
ferences
1. Notification No.S.O. 391/PWA/Sec.7/ Exp.II/1969 dated 10thJuly, 1961 vide Gazette ofIndia, Part II S.3 (ii) dated the 18th Feb. 1961.
2. C.Balakrishnan vs. Superintending Engineer, 1992 (1) LLJ 750 (Madras High Court).
3. O.A. Oomen O.Abrahim vs. The Management of Hidustan Aeronautics Ltd. 1973 Lab. IC 2002.
(xxxviii) SUPERANNUATION AND TERMINATION
Can 'superannuation' and 'termination' be equated ?
Termination and superannuation cannot be equated. 'Superannuation' is an event which comes more or less in an automatic process. An age is fIXed on the reaching of which the holder of an office is required to go out of office. There is no viola¬tion in the Act. With the lapse of time the even t automatically comes. Both parties, i.e. the employer and the employee have notice of the matter long before and it is an event which cannot be arrested by them if the rule is to be followed. On the other hand, 'termination' is a positive act by which one party even against the desire of the other can bring about the end to an employment. The two processes are, therefore, essentially different and there is hardly any room to equate one with the other.
Reference
Soraj Kumar Ghosh vs. Chairman, Orissa State Electricity Board, AIR 1970 Orissa 126 and the Single Judge decision of Punjab H.C. reported in 1975-11 LLJ 143.
(xxxix) RIGHT TO TRANSFER FROM ONE PlACE TO ANOTHER
Is it within the rights of the employer to transfer his employees from one place to another? M-1tat are the restrictions in exercising such a right ?
The right of an employer to transfer his employees from one branch to another and from one place to another is implicit in. the contract of employment. It is only the employer who is entitled to decide on consideration of the exigencies or the necessities of his business whether the transfer of a particular employee from one particular job, department or branch to another is necessary in as much as the decision of such question is a matter of internal man¬agem~t. But it does not mean that an employer has the right to transfer his employee to a new concern started by him subsequent to the date of employment of his employee, unless it is so stated in the terms of his employment that he would also be liable to be trans¬ferred to any of the existing concerns or the {:oncerns newly started by him in future. The right of an employer to transfer his employee• from one station to another though within the discretion of the employer is always subject to the condition that the terms of contract of employment of the employee are not adversely affected. If, there¬fore, the order of transfer is prima jacievalid, it is for the employee 'Lo show that it was, in fact, not valid. It is true that if an order of transfer is mala fide or for some ulterior purpose like punishing an employee for his trade union activities then certainly such an order is liable to be set aside.
References
1. Syndicate Bank Ltd. vs. Its Workmen, 1964-11 131 (SC). See also Bareilly Electricity Supply Co. Ltd. vs. Sirajuddin, 1960-1 LLj 556; Alexandra Bouzouron vs. Ottoman Bank, AlR 1936 PC I 19; May vs. S~laiyarai Estate, 1956-1 LLj 343; Bata Shoe Co. Ltd. vs. Ali Hasan, 1951-1 LLj 278; S.N. Mukherjee vs. Kemp & Co. Ltd., 1954 LAC 903.
2. Kundan Sugar Mills vs. Ziyauddin, 1966-1 LLj 266; New Indian Flour Mills vs.
Sixth LT. West Bengal, (1963) I LLj 749 (CaI.HC).
3. Hindustan Lever Ltd. vs. The Workmen, 1974 Lab. IC 128 (SC); AIR 1974 SC (217); (1974) 2 SCC (Lab.) 510; 27 Fac.LR 398; (1974) 1 Lab.LN 93; (1974) I LLj 94.
4.. Syndicate Bank Ltd. vs. Its Workmen, 1966-1 LLj 440 (SC).
(xl) REVOCATION OF TRANSFER ORDER
Can civil courts revoke transfer order of an employee under exceptional circumstances ?
In one case, an employee who has worked for 34 years in Madras was transferred to Calcutta. He challenged the order of transfer in filing a civil suit on the ground that there was no such stipulation in the contract of employment and that he was a heart patient and had only three years to retire. He further contended that the transfer would be at the peril of his life and he would be put to great hardship. The trial court and the ~ppellate court rejected the pleas of the employee on the plea that he cannot interfere in the transfer order even when there is hardships to the employee. The employee filed a revision petition in the High Court. While allowing the petition it has been held that the petitioner has established a frrir;rza facie case and the balance of convenience has been in his favour. An injunction order was passed in favour of the petitioner restraining the employer in giving effect to the transfer order.
Reference
Thirumal (N) vs. Binny Ltd. (Represented by its Managing Director) Madras, ~989-1 LLN 1037 (Madras High Court).
RANSFER OF EMPLOYEE AND CHANGE IN CONDITIONS OF SERVICE
Whether transfer of a worker more particularly a protected worker will entitle him to make a complaint against the employer ?
For applying section 33 (2) (a) of the Industrial Disputes Act, 1947, it has to be seen whether the employer has altered the terms and conditions of service of the workman or the terms of his employment, which will amount to a contravention of the provisions. Where the contract of employment is contained in the original appoin tment order and the subsequent confirmation order states that they are bidding on the parties, and according to the terms and conditions of appointment, the appellant is liable to serve in any of the offices or field locations of the management within the Indian Union as may be decided by the management from time to time. Prima facie, the transferability of the appellant to any place in India is a conditidn of service applicable to him immediately before the commencement of the proceedings.
Reference
B. Gopalakrishnan vs. Indian Potash Ltd. and another, 1985 (66) FJR 243 (Madras HC).
WHETHER TRANSFER AMOUNTS TO CHANGE IN CONDMONS OF SERVICE
Does transfer of an employee amount to change in conditions of service as provided under Section 33 of the Industrial Disputes Act ? Can such an employee challenge the same !Jy filing application under Section 33-A of the Industrial Disputes Act?
In a point offact the transfer of an employee has no con¬cern whatsoever with the pending dispute relating to . fixation of wages which will not amount to aiterillf service condition much less to his prejudice, therefore, the application under section 33-A of the Industrial Disputes Act has been held wholly untenable.
Reference
Dainik Naveen Duniya,j abalpur liS. Labour Court,jabalpur and Anrs., 1991 I LLN 745 (Mad.ras HC).
(xliii) TERMINATION BY SUBORDINATE AUTHORITY
Can an authority subordinate to the appointing authority validly terminate the services of an employee ? Can such a termination be rntifted by the appointing authority ?
No. In one case the services of an employee were termi¬nated by the Zonal Manager whereas the appointment of the employee was made by the General Manager of the Bank. Ithas been held that such termination will be null and void. It was further held that by age old recognised relationship of master and servant; it has become an integral part of service jurisprudence, that an authority subordinate to the appointing authority cannot terminate the service of an employee, whether an employee is a civil servant or not !iIs immaterial. Provisions of the General Clauses Act, coupled with the principles of natural justice and rules and regulations, statutory or otherwise, were equally effective to protect the employees against indiscriminate exercise of jurisdiction by officers subordinate to the appointing authority.1 It was further held that since the order of termination was null and void, the employer (in this case a Bank) cannot be permitted to continue with the proceedings against the workman in order to pass a fresh order by getting the same signed by a really competent authority. Such a course is neither permissible in law nor reasonable or proper. For more case law, reference can be made to the followingjudgments.2
References
1. Bank of India vs. Central Government Industrial Tribunal-cum-Labour Court and others, 1991 LLR 497 (P&H HC).
2. Gadde Venkateswara Rao vs. Government of Andhra Pradesh, AIR 1966 SC 828; 1966 (1) SCA 835; 1966(2) Mad. L] 37; 1966 (2) sg 270; Municipal Corporation of Delhi vs. Sh. Ram Pratap Singh, AIR 1976 SC 2301; 1979 Servo LJ 499; 1977SCC (Lab) 89; 34FLR 7; 19771 LLJ 303; 1979 (2) SLR324 Gwalior District Cooperative Bank Ltd. vS. Ramesh Chandra Mangal, (1979) 2 SLR 464; Workmen of Hindus tan Lever Ltd., (1984) 64 FJR292; (1984) I LLJ 388; Punjab State Cooperative Supply and Marketing Federation Lt
(xliv) TRAVELLING EXPENSES
Can a worker demand travelling expenses from his residence to the working place ?
In the absence of a specific condition that an employer sho'uld bear employee's travelling expenses from residence to work¬ing place, the latter cannot claim extra allowance when he shifts his residence to a more distant place. The Calcutta High Court has held that there will be no claim when the employer in exercise of his inherent right to choose his place of work shifts the same to another place. Shifting of business is not transferring employees and hence the claim could not be justified.
Reference
Shalimar Paints vS. Third Industrial Tribunal, 1.975 Lab. IC 213; (1974) 21LR Ker 264; (1975) 1 Lab. LJ 86; 1974 Ker.LT 671.
(xlv) UNDERTAKING FROM WORKERS
Can an employer insist the workers to give an undertaking to maintain security and/or good behaviour?
Since it amounts to change in conditions of service, such an undertaking cannot be insisted by the employer. In one case, the employees objected to resumption of their duties after the strike because the management was insisting on security undertaking from them which they considered as insult to their integrity, it has been held that the employees were justified in resisting that no undertak¬ing should be asked by the employer before they were allowed to reSume their duties and, therefote, the contention of the employer that the employees were not willing to resume their duties was neither justified nor correct.
In another case, the workmen went on strike and latter called it off by intimating the employer to this effect. However, no workman was allowed by the employer to resume duties unless an undertaking in writing for good behaviour was given to him by the employees. It has been held that it was neither fair nor legal on the part of the employer to insist that the workmen should give an undertaking which was in the nature of apology and as such insisilng upon such execution in writing amounted to change in conditions of service. However, a different view was taken by the Bombay High Court in holding that the employer has got every right to tell the workmen not to enter the premises if they have no intention to work. It must be mentioned here that laws as applicable in Bombay to this effect are different than other States because of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
References
1. A.Raman vs. K.N. Vani, 1982 II LLj 1 (Bombay High Court).
2. Swastic Textile Engineers (P) Ltd., vs. Bajan Singh and another, 1984-II LLj 97.
3. Bombay Dying & Mfg. Co. Ltd. vs. Manubai Mazdoor Sabha, 1986-II LLj 306; 1986 (2) CLR 242.
(xlvi)' WITHDRAWAL OF CONTRIBUTION TO THE SPORTS ASSOCIATION
Will financial contributions given by the employer to the Sports Association of the employees amount to condition of service of the employees ? Whether section 9-A of the Industrial Disputes Act be attracted if such contribution is withdraum by the employer ?
In this connection it is pertinent to refer to a case where the petitioner company was making voluntary financial con¬tributions to the sports association of the workers. Due to financial stringency, the company refused to continue the contributions. The Unions agitated and raised an industrial dispute whi
Reference
Duncan Brothers & Company Ltd. 1985 (2) LLN 897 (Cal.I-1C).
(xlvii) WITHDRAWALOFDUTYREUEF
Will the concession of duty relief by the employer to the employees be deemed as condition of their service ? Whether section 9-A of the Industrial Disputes Act be attracted if such a relief is withdrawn, by the employer ?
In one case, the employerproposerl to withdraw the duty relief given to the office bearer of the union which was challenged by the union in the High Court. The Hon 'ble High Court held that the trade union activities performed by the office bearers of the union are solely for the benefit and welfare of the workmen of the bank and not connected with the banking institution itself or the members of the public, whose interests the banks are intended to serve. The prime duty of the employees in to serve the bank and then only the union. The grievance of the union has been that the management having once extended the benefit was not right in withdrawing it. The High Court held that at the laymen's level, the contention may sound plausible but it can have no relevance in the legal forum. For whatever reason, the management may have deemed it fit or conducive ~ grant duty relief at an anterior point of time, the legal status of the Act is only that of a 'concession' and not a matter pertaining to the 'condition of service'. Only when there is change in service condition and the notice of change is to be issued.
Reference
Workmen of Indian Bank vs. Indian Bank 1985•1 LLN 184.
