December 2023 National News
Vivek Kaisth v. State Of Himachal Pradesh
Civil Appeal No. 6233-6234 of 2023
Facts:
The Himachal Pradesh Public Service Commission invited applications from eligible candidates against 8 vacancies for the post of Civil Judge, (Junior Division) in Himachal Pradesh Judicial Service. Out of 8, 6 were “existing vacancies” and 2 were “anticipated vacancies”. After conducting a preliminary, main written examination and the interview, 8 candidates were selected and a list was published on the website of the Commission and the newspaper on 8.10.2013. The names of two of the current appellants, Akansha Dongra and Vivek Kaisth, did not show up in the list and their names were included in the above list later vide notification dated 27.12.2013 issued by the Government. The Himachal Pradesh High Court held these two selections and consequently, appointments to be illegal and quashed them. Therefore, the current appeal was filed.
Arguments of the parties:
1. Appellants
The appellants argued that their appointment to the post of Civil Judge (Junior Division) was valid and should not have been quashed. They contended that it was according to the concept of “waiting list” as held by the Supreme Court in Malik Mazhar Sultan and Anr v. UP Public Service Commission and Ors (2008) 17 SCC 703.
2. Respondents:
The respondents, the State of Himachal Pradesh, argued that the appointment process was flawed and thus the appointment of the appellants was invalid. The selection and appointment of the appellants were done without following the procedure prescribed by the Himachal Pradesh Judicial Service Rules, 2004, and without obtaining the approval of the Governor or the Chief Justice of the High Court.
Issues:
The Supreme Court mainly examined the following issues:
1. Whether the selection and the appointment of the appellant was valid to the post of Civil Judge, (Junior Division)?
2. Whether they should now be unseated from their office?
Reasoning of the court:
The High Court’s directions in Shweta Dhingra v. State of Himachal Pradesh (2011) SCC OnLine HP 3566 were inconsistent with the Supreme Court’s decision in Malik Mazhar Sultan (3) v. U.P. Public Service Commission (2008) 17 SCC 703, as they created a third category of vacancies, specifically “future vacancies”, that the Supreme Court did not anticipate. The directions were also unnecessary because the positions had already been advertised and the selection process had been finished. The appointments were held to be illegal and arbitrary on the reason that they were made on the vacancies that were not anticipated when the vacancies were advertised in February 2013. This would also rest the claim of such candidates who gained eligibility subsequently and had a right of consideration. Thus, the court held that the vacancies that did not exist or could not be anticipated at the time of notification/advertisement could only be filled by the future candidates.
The appellants’ selection and appointment were not protected by the principles of equity since they were illegitimate and arbitrary. The appellants could not assert a vested right or legitimate expectation to continue in service because they were aware of the flaws and irregularities in their selection and appointment.
The appointment following the publishing of the merit list and without disclosing the new vacancies was invalid and unconstitutional, as it breached the Service Rules, the constitutional mandate of Articles 14 and 16, and the judicial precedent set out in Malik Mazhar Sultan v. Uttar Pradesh Public Service Commission (2009) 17 SCC 24. The appellants were likewise selected and appointed without a reasonable foundation, without consultation with the High Court, and without consideration for merit or communal rotation. In Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637, the practice of making appointments on future vacancies from the waiting list was held to be wrong. The court relied on this judgment while repudiating the argument of the appellants regarding the “waiting list”.
The Supreme Court held the selection and the appointments to be illegal and arbitrary but as nine years have passed and the appellants have been promoted to senior judges and to do complete justice and in the exercise of the powers under Article 142 of the Constitution of India, the Court set aside the order of the High Court as far as it quashed the selection and appointment of the appellants and allowed them to seated.
Conclusion:
The court partially allowed the appeal.
U.P. Singh v. Punjab National Bank
Civil Appeal No. 5494 of 2013
Facts:
The appellant, a workman was appointed with the Punjab National Bank on 20.06.1977 as Clerk cum-Cashier. On 14.06.1982, he was suspended on account of his disorderly behaviour. On enquiry, the workman was found guilty of the charges and awarded the punishment of stoppage of two graded increments with cumulative effect vide order dated 28.09.1983. Vide the same order, he was also transferred to another branch, specifically to the Manager, Branch Office, Bhagwantnagar, Unnao, but he did not report for duty and continued to write letters to the bank authorities to provide him the subsistence allowances without disclosing his address. In terms of Clause XVI9 of the Bipartite Agreement10 between the Indian Banks’ Association and Workmen Unions, vide order dated 05.12.1984, the workman was deemed to have voluntarily retired from service. Aggrieved by the aforesaid action of the Bank, six years later, the workman raised a dispute about his deemed retirement before the Assistant Labour Commissioner which was referred to the Central Government Industrial Tribunal-cum-Labour Court (Tribunal) for adjudication. Further, the tribunal gave a decision in his favour but the High Court reversed it. So, he filed the current appeal.
Arguments of the parties:
1. Petitioner:
The appellant contended that he was on suspension and could not be moved or assumed to have voluntarily retired. He further alleged that he was denied subsistence allowance and was subjected to mental torture by the bank. He contested the legitimacy of Clause XVI of the Bipartite Agreement and requested reinstatement with full back wages and other benefits.
2. Respondent:
PNB, the respondent, contended that the appellant was transferred to prevent further indiscipline and received a minor punishment of stoppage of two graded increments. Despite several notifications and warnings, he did not join his new duty. In addition, he went on a hunger strike and misbehaved with his senior officers. Having received legal training, he was aware of the not joining. Under the terms of Clause XVI (Voluntary Cessation of Employment by the Employees) of the Bipartite Agreement, he was considered to have voluntarily withdrawn from service. In 1985, he also registered as an advocate and began working. And, thus he did not deserve any relief.
Issues:
1. Whether the appellant was deemed to have voluntarily retired from service under Clause XVI of the Bipartite Agreement and was he entitled to reinstatement with full back wages?
2. Whether the master-servant relationship comes to an end during the suspension of an employee?
Reasoning of the court:
The court upheld the order of deemed voluntary retirement given by the judgment of the High Court. It observed that the appellant was required to abide by the punishment and transfer orders since they were not contested by him. Additionally, it determined that the appellant was aware of the respondent’s notices and warnings as well as the repercussions of his absence from duty under Clause XVI of the Bipartite Agreement for more than 90 days. It further ruled that the appellant was a practising counsel and had no intention of reporting for duty. The writ petition that the appellant had filed was dismissed. It held that the appellant was trying to drag the respondent into avoidable litigation instead of complying with the orders. Thus, the claim of the respondent that the appellant was deemed to have voluntarily retired from service under Clause XVI of the Bipartite Agreement and was not entitled to reinstatement with full back wages was right.
For the second issue, the court notes that during the suspension, the master-servant relationship does not come to an end. All the rules and regulations governing the post continue to apply. Merely because the Bank had stopped paying subsistence allowance to the workman does not mean that the workman was no longer an employee of the Bank.
Conclusion:
The appeal was dismissed.
Ankita Thakur V. H.P. Staff Selection Commission
2023 SCC OnLine SC 1472
Facts:
The appellants challenged the recruiting process for the position of Junior Office Assistant (IT) in various departments of the Himachal Pradesh government under the Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology), Class-III, (Non-Gazetted), Ministerial Services, Common Recruitment and Promotion Rules, 2014, framed under the proviso to Article 309 of the Constitution of India, which were notified to have common recruitment and promotion rules for the post of JOA in various departments of the Government. The Himachal Pradesh Staff Selection Commission (HPSSC) released sequential advertising (Post Codes 447, 556, and 817) as part of the 2014 Rules-based recruiting procedure. Notably, the recruitment process for Post Code 447 used a relaxation order dated August 21, 2017, but Post Code 556’’s recruitment fully followed the 2014 Rules, resulting in unfilled posts. These vacant positions were subsequently re-advertised under Post Code 817 in accordance with the 2020 Rules. Appeals were also filed in the High Court.
The Himachal Pradesh High Court dismissed the appeals while affirming the relaxation order of the State Government. The matter reached the Supreme Court.
Arguments of the parties:
1. Appellants:
The appellants argued that the relaxation order passed by the Government was illegal and arbitrary, as it violated the 2014 Rules and the advertisements, which did not reserve any power to relax the eligibility criteria at any later stage. They contended that the relaxation order expanded the zone of consideration and reduced their chances of selection.
2. Respondent:
The respondents argued that the relaxation order was passed to remove the confusion caused by terms like “recognized institutions/university” and so it was valid.
Issues:
The Supreme Court, inter alia, decided the following issue:
Whether relaxation in the essential eligibility qualifications be made by the government under Rule 18 of 2014 rules post the last date fixed for receipt of application from the candidates?
Reasoning of the court:
The Supreme Court set aside the order of the High Court. It held that the relaxation order dated 21.08.2017 was invalid and beyond the power of the State Government under Rule 18 of the 2014 Rules, as it relaxed the essential qualifications for the post of JOA after the last date of applications, without consultation with the HP Staff Selection Commission and without publicizing it to the applicants. Thus, out of 1421 posts advertised, 809 candidates appointed did not hold qualifications as per the 2014 Rules; they got selected only because of the illegal relaxation order.
The court relied on the cases of Rakesh Kumar Sharma v. State (NCT of Delhi), (2013) 11 SCC 58, Bedanga Talukdar v. Saifudaullah Khan, (2011) 12 SCC 85, and
Sanjay K. Dixit v. State of U.P., (2019) 17 SCC 373 that if the extant Rules provide for the power to relax the eligibility criteria, the same could be exercised only if such power is reserved in the advertisement. When this power is exercised, there must be wide publicity of its exercise so that persons who are likely to benefit from the exercise of such power may get an opportunity to apply and compete.
However, the court did not disturb the posts of the appointees who were appointed by the relaxation order due to elapse of time and they were appointed after conducting written and typing tests.
Conclusion:
The Supreme Court allowed the appeals and set aside the order of the High Court.
Union of India & Ors. v. D.G.O.F. Employees Association and Anr.
2023 SCC Online SC 1471
Facts:
The respondent, an association of employees at the headquarters of the Ordnance Factory Board (OFB), who sought to increase the pay scales of Assistant and Personal Assistants to those given to similarly placed employees of the Central Secretariat Service (CSS) and equivalent posts in the Armed Force Headquarters Civil Service (AFHCS) Cadre. The Ministry of Defence denied their claim, which was later affirmed by the Central Administrative Tribunal (CAT). The respondent filed a challenge to the CAT’s order in the High Court of Delhi. The High Court held in the favour of the respondents, by following the principle that the members of the respondent were historically treated as equals to CSS/CSSS employees and had earlier enjoyed equal pay and all benefits.
Arguments of the parties:
1. Petitioner:
The appellant, the Union of India, maintained that the executive had the authority to determine pay scales and that the court should not interfere unless there was arbitrariness or discrimination. The appellant relied on paragraph 3.1.14 of the VIth CPC, which prescribed replacement pay ranges for non-Secretariat organisations, and claimed that paragraph 3.1.9, which referred to employees of Secretariat offices, did not apply to the respondent’s members. The appellant also contended that the OFB was not a headquarters-based organisation, and its employees were not historically treated equally with CSS/CSSS employees.
2. Respondent:
The respondent argued that the denial of parity was due to the appellant’s incorrect interpretation of the VIth CPC recommendations. The respondent relied on the historical consistency of pay scales and benefits enjoyed by its members and CSS/CSSS and other equivalent post employees, as laid down by the High Court. They also claimed that the OFB was a headquarters-based organisation with personnel assigned in comparable positions to Secretariat offices.
Issue:
Whether the members of the Employees Association, the respondents, were entitled to the benefit of parity in pay scales with the employees of CSS/CSSS and other similarly placed organizations, in terms of paragraph 3.1.9 of the recommendations of the Sixth Central Pay Commission (VIth CPC)?
Reasoning of the court:
The Supreme Court affirmed the judgment of the High Court. The High Court had examined the VIth CPC’s recommendations and the CCS (Revised Pay) Rules, 2008, and found that the respondent’s members had historically been considered as equals to CSS/CSSS employees, with equal pay and benefits. The High Court noted that the parity was maintained even after the Fifth CPC recommendations and their implementation, with the only event that disrupted the parity being the intervening upgradation of the pay scales of CSS/CSSS and other similarly placed organisations, pending the acceptance of the VIth CPC recommendations.
The High Court also pointed out that the appellant’s reliance on paragraph 3.1.14 was erroneous since it only indicated the replacement scales from the existing scales and had no bearing on the parity that existed between Secretariat and non-Secretariat personnel. The High Court further found that the appellant’s claim that the OFB was not a headquarters-based organisation was implausible, because the OFB was established at the DGOF’s headquarters office, and the concept of headquarters in the VIth CPC guidelines did not limit it to New Delhi. It also noted that the mention of specific departments or organisations in paragraph 3.1.9 was illustrative rather than exhaustive and that the qualifying terms “like” and “etc.” indicated that the intention was to cover all organisations where employees had identical pay scales, not just those in enumerated departments or organisations.
The Supreme Court, apart from the above, relied on its past judgments in the State of Punjab and others vs. Jagjit Singh and others (2017) 1 SCC 148 where it held that where there is no comparison between one set of employees of one organisation and another set of employees of a different organization, there can be no question of the equation of pay scales under the principle of “equal pay for equal work” even if two organizations have a common employer. But, keeping in view the recommendation of the Pay Commission and the applicability of the pay scales recommended to similarly placed employees employed in the headquarters and on noticing discrimination despite the historical similarity, the Supreme Court affirmed the judgment of the High Court without any interference.
Conclusion:
The appeal was dismissed due to lack of merit.
Tamil Nadu State Transport Employees’ Federation v. Government of Tamil Nadu
W.P.No.31458 of 2023 (Madras High Court)
Facts:
The petitioner, Tamil Nadu State Transport Employees’ Federation, challenged the tender notification issued by the 5th respondent, Metropolitan Transport Corporation Ltd., for engaging drivers and conductors through a manpower agency (outsourcing) to operate regular bus operations. This violated the bilateral agreement of 1992 between the Union and the Corporation that all direct recruitments would be done by the Management through the Employment Exchange except in cases of death in harness. The government orders of 2023, which permitted the recruitment of driver-cum-conductors by following a transparent procedure, were also violated.
Arguments of the parties:
1. Petitioner:
The petitioner claimed that outsourcing would result in two types of employees with different salaries and benefits for the same job, which would be discriminatory and would amount to unfair legal practice. The petitioner further claimed that outsourcing would cause labour unrest and have an impact on the public transport system, both of which are considered important services. It also argued that there was no express decision waiving the obligation of recruiting through the Employment Exchange and that such tender was arbitrary and capricious, citing the Special Joint Labour Commissioner’s ruling instructing the parties to maintain the “status quo”.
2. Respondent:
The respondents contended that outsourcing was a government policy choice to address the situation of a shortage of drivers and conductors, which was caused by the long and wilful absenteeism of many existing drivers. The respondents further contended that the outsourcing was just for one year and that the tender notification did not violate any laws or orders. The respondents additionally stated that the petitioner lacked standing to oppose outsourcing because it had not protested the 6th respondent’s comparable decision in 2022.
Issues:
The court considered the following two main issues as follows:
1. Whether the tender notification for outsourcing drivers and conductors was valid and legal?
2. Whether the outsourcing would violate the bilateral agreement and the government orders?
Reasoning of the court:
The court held that the outsourcing of drivers and conductors violated the common service regulations and the 1992 agreement of settlement, which required all direct recruitments to go through the Employment Exchange. The court also found that the outsourcing violated government guidelines of 2023, which advised hiring driver-cum-conductors as a viable solution to the manpower shortage. The court while agreeing with the petitioner Union’s argument noted that outsourcing would result in two types of employees with different salaries and benefits for the same job, which would be discriminatory and would amount to unfair legal practice. The court further emphasised that outsourcing would have an impact on the reservation system for direct recruitment as well as responsibility in the event of dereliction of duty or carelessness. The court relied on the Supreme Court judgment in State of Orissa vs. Mamata Mohanty, 2011(3) SCC 436 to hold that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution.
The court directed the respondents to adopt a more transparent and easier process to recruit drivers instead of venturing into the outsourcing mode through man power agencies. It also quashed the tender notification for outsourcing drivers and conductors.
Conclusion:
The court allowed the writ petition.
Kush Kalra v. Union Of India & Ors
W.P.(C) 4186/2018 (Delhi High Court)
Facts:
The matter has been pending for the past 5 years in the court. This is an interim order of the court. The facts of the case are as below:
The petitioner, Kush Kalra, filed a writ petition challenging the exclusion of women from the recruitment process for the post of Constable (Driver) in the Central Industrial Security Force (CISF), a statutory force created under the Central Industrial Security Force Act, 1968. The petitioner claimed that this amounted to gender discrimination and violated the constitutional rights of women under Articles 14, 15 and 16 of the Constitution of India.
Arguments of the parties:
1. Petitioner:
The petitioner contended that the exclusion of women was arbitrary, unreasonable, and discriminatory and that there was no rational connection between the goal of the recruitment process and the gender classification.
2. Respondent:
The respondents argued that the recruitment process was governed by the CISF, Security Wing, Constable (Driver) Recruitment Rules, 2013, which prescribed certain eligibility criteria, including physical standards, for the candidates. The respondents submitted that these criteria were not suitable or feasible for women candidates and that the exclusion of women was not discriminatory but based on practical considerations and operational requirements.
Issue:
Whether the respondents, the Union of India and others, justify the exclusion of women from the recruitment process for the post of Constable (Driver) in the CISF based on any reasonable classification or any statutory provision?
Reasoning of the court:
The court held that the petition was not viable in its current form since it did not seek a modification or challenge to the statutory recruitment regulations that were the source of women’s exclusion. The court noted that if a female candidate was to be considered, there would have to be subsequent directives to alter the recruitment guidelines to bring them in line with the physical standards that may be required of a female candidate.
In the current order, the court directed the CISF to amend its Recruitment Rules to allow the recruitment of women as drivers in CISF within six months.
Conclusion:
The court ordered the CISF to amend the Recruitment rules within six months.
Feroz Ahmed Sheikh Vs Union Territory Of J&K
WP(C) No. 2260/2022 (High Court of J&K)
Facts:
The petitioners were engaged on a consolidated/contractual/need/contingency basis by the J&K Handicrafts Corporation for various positions. The Corporation was in the process of developing a policy to determine their future positions. However, following an “Alert note” issued by the Anti-Corruption Bureau (ACB) alleging that the engagements were created through abuse of authority by several Managing Directors, the petitioners were disengaged without conducting an inquiry by the Corporation. The petitioners took the disengagement order to the High Court of Jammu and Kashmir and Ladakh.
Arguments of the parties:
1. Petitioner:
The petitioners argued that their disengagement was motivated by allegations of misconduct and abuse of authority levelled against the former Managing Directors, which cast a stigma on their reputation and prospects. They contended that they were entitled to a proper inquiry and an opportunity to be heard before the impugned ruling was issued. They further claimed that they had a legitimate expectation of being retained or regularised in their positions because the Corporation was in the process of developing a policy for contractual employees and a committee was formed by the government to investigate their situations.
2. Respondents:
The respondents argued that the petitioners had no cause of action against them because they were hired on a contract basis without going through the required selection and approval procedures. They claimed that contractual employees had no vested right to continue in their positions and could not use the doctrine of legitimate expectation. They also relied on the ACB’s alert note, which suggested the petitioners’ disengagement due to misuse of authority by the prior Managing Directors.
Issue:
Whether the disengagement of the petitioners was stigmatic and punitive in nature and violated the principles of natural justice and Article 311 of the Constitution of India?
Reasoning of the court:
Affirming its precedent in Faheen Vs. University of Kashmir & Ors. reported as 2003 (Supp) JKJ 235, the court ruled that the petitioners’ dismissal was stigmatic and punitive in nature, as it was based on charges of misconduct and misuse of authority, which tarnished their character and reputation. The court also paid reliance on the Supreme Court’s view in K.C. Joshi v. Union of India & Ors, (1985) 3 SCC 153 that the contract of service has to be in tune with Articles 14 and 16 of the Constitution of India and if State action affects livelihood or attaches stigma, punitive action can be taken only after an inquiry, in keeping with the principles of natural justice.
Based on the similar the case of Director General of Police & Ors. Vs. Mrityunjoy Sarkar & Ors., (1996) 8 SCC 280 was decided by the Supreme Court holding that the principles of natural justice require that they should be given a reasonable opportunity of representation in the enquiry to be conducted and appropriate orders with reasons in support thereof need to be passed.
The court notes in the instant case that the disengagement of the petitioners was violative of the protection guaranteed to temporary servants under Article 311(2) of the Constitution of India as the respondent corporation needed to conduct its inquiry instead of relying its decision on the ACB’s Alert note. The court also determined that the ACB’s alert note was not conclusive and binding on the Corporation, and the petitioners could not be punished for the alleged actions of the prior Managing Directors. The court also held that the petitioners had a legitimate expectation of being considered for continuation or regularisation in their positions because the Corporation was in the process of developing a policy for contractual employees and the Government had formed a committee to investigate their cases. The court stated that the petitioners had provided their services for nearly two decades, and their dismissal was unfair and arbitrary.
Conclusion:
The court allowed the petition.
Bineet Singh Bisht v. Union of India and Anr.
W.P.(C) 5250/2018 (Delhi High Court)
Facts:
The petitioner joined as sub-Inspector (GD) in Indo Tibetan Border Police (ITBP) on 28.07.2014. He was terminated from service for not disclosing his involvement and arrest in a criminal case for crimes under sections 420/467/468/471 IPC in 2010, which was pending at the time of filling out the verification and enrollment forms. He stated he was unaware of the case, that it was incorrect, and that the questions on the forms were unclear and complex. He further claimed that he was acquitted in the case following a compromise with the complainant.
Arguments of the parties:
1. Petitioner:
The petitioner claimed that he did not withhold or provide misleading information on purpose, but rather as a result of a genuine mistake and misunderstanding of the inquiries. He maintained that the questions were technical and complex, and might be read in multiple ways.
2. Respondent:
The respondent claimed that the questions on both the forms were plain and unambiguous. They claimed that despite being arrested and held in custody in a criminal matter, the petitioner purposely concealed his involvement in it to secure employment. They further claimed that the case’s later quashing based on compromise absolved the petitioner of his acts of suppression and concealment. They justified his termination of service by citing Rule 22 of the Indo-Tibetan Border Police Rules 1994 (ITBP Rules) read with Section 11 of the Indo-Tibetan Border Police Force Act 1992 (ITBP Act).
Issues:
1. Whether the petitioner suppressed or gave false information about his criminal antecedents in the verification and enrolment forms?
2. Whether the termination of his service was justified and in accordance with the ITBP rules and regulations?
3. Whether the subsequent acquittal of the petitioner in the criminal case have any bearing on his suitability for the post?
Reasoning of the court:
The court rejected the petitioner’s arguments and dismissed the petition. The court held that:
The petitioner concealed and provided incorrect information about his criminal history on the verification and enrollment forms. The questions in the forms were simple and specific, with no complexities or ambiguity. The petitioner, a commerce graduate, could hardly claim ignorance or misunderstanding of the questions. He did not mention this plea in his communication with the respondents. He was aware of the status of the case in which he had been arrested and held.
The termination of his service was appropriate and in line with ITBP regulations. The court also applied the legal position laid down by the Supreme Court in Avtar Singh vs. Union of India and Ors (2016) 8 SCC 471 and noted that verifying character and antecedents was an important criterion for assessing fitness and that the employer had the right to examine the employee’s antecedents and trustworthiness.
The court further noted that the petitioner was informed in the temporary appointment letter and forms that any false information or suppression of facts would render him ineligible for employment and subject to termination. The subsequent acquittal of the petitioner in the criminal case had no bearing on his suitability for the post. Relying on another judgment of the Supreme Court in Rajasthan Rajya Vidyut Prasaran vs. Anil Kanwariya : (2021) 10 SCC 136, the court stated that the key issue was not the triviality of the matter or the subsequent acquittal, but the credibility and trustworthiness of the employee who made a false declaration or suppressed material facts at the initial stage of the employment. The court emphasised the perspective of the employer. The court also remarked that the offences were not trivial as they involved forgery and impersonation in the class XII examination.
In the end, the court maintained that there has to be strict obedience towards disclosure of criminal history by anyone seeking employment in disciplined forces and, perpetually, there is no room for the one who endeavours to seek employment by concealing material facts about his criminal antecedents.
Conclusion:
The court dismissed the petition and upheld the termination of the petitioner’s service.
Bal Amrit Singh V. UoI & Ors.
CWP-10515-2013 (O&M), High Court Of Punjab And Haryana
Facts:
The petitioner’s father died in operation Blue Sta conducted at Golden Temple, Amritsar in 1984. He sought appointment on compassionate grounds based on a circular issued by the Government at that time which granted compassionate appointment to the dependent family members of the persons killed in terrorism/riots. The petitioner was a minor at the time of his father’s death so he applied in 1998 and after 12 years, in 2010 his application was rejected. He filed a writ petition.
Arguments of the parties:
1. Petitioner:
The petitioner argued that he should be given an appointment on compassionate grounds as he was a minor at the time of the death of his father and dependent on his father.
2. Respondent:
While rejecting the representation made by the petitioner regarding his appointment on compassionate grounds stated that the persons who died during the said operation Blue Star would not come within the category of persons killed during the terrorism/riot.
Issue:
Can the petitioner be given an appointment on compassionate grounds even when considerable time has elapsed?
Reasoning of the court:
The court instead of going over whether the appointment was available to the families who died during the operation Blue Star, held that the by efflux of time after almost more than 20 years, compassionate appointment cannot be offered to the petitioner. It noted that an appointment on compassionate grounds is given to the dependent of the deceased Government servant only to come out from the immediate financial difficulties which cannot be said to exist as of today with the petitioner.
Conclusion:
The writ petition was dismissed on account of the efflux of time.
IMT Industrial Association and another v. State of Haryana and Anr
2023 LiveLaw (PH) 236, High Court of Punjab and Haryana
Facts:
Petitioners challenged the Haryana State Employment of Local Candidates Act, 2020, which provided for 75% reservation in jobs having a monthly salary of less than Rs 30,000 in the private sector for local candidates, stating that it is violative of Part-III of the constitution. Petitioner contested that the provisions of the 2020 Act constitute an unprecedented intrusion by the State Government into the fundamental rights of private employers under Article 19. The Petitioners allege infringement of Article 14 of the Constitution, asserting that all citizens have the right to equal employment and the freedom to reside and settle anywhere in the State of Haryana.
Arguments of the parties:
1. Petitioner:
The petitioners argued that the 2020 Act conflicted with Constitutional provisions, specifically Articles 16(2) and 16(3). According to Art. 16(3), only the Parliament alone could legislate on employment based on residence. The 2020 Act constitutes a fraud of State power, by allegedly overstepping permissible limits, especially in light of Article 15(3) prohibiting discrimination based on place of birth. The 2020 Act promotes regional chauvinism and contradicts the Constitutional mandate of equality of opportunity in public employment as per Article 16(2). The 2020 Act violated fundamental rights, specifically targeting Article 19(1)(g) regarding the practice of professions or occupations. References were made to Articles 19(5) and 19(6), stressing that any restrictions must be reasonable and in the interest of the general public. The Act is aimed at protecting the livelihood, health, living conditions, and employment rights of Haryana’s domiciled people by preventing an influx of human resources, which is violative of Articles 19(1)(e) and 19(1)(g) of the Constitution. It undermines the oneness of the country by denying private employment based on birthplace. As per Article 38, a State is obliged to minimize inequalities and provide opportunities. The 2020 Act, withdraws opportunities based on birth, which is a departure of constitutional principles. The word “migrants” used in the 2020 Act, infringed Article 51’s mandate of promoting harmony and common brotherhood.
2. Respondent:
The respondents made a lot of insignificant arguments targeting the IMT Industrial Association instead of going over the broad issue of reservation on a domicile basis. It argued that State Trading Corporation of India Ltd. vs. The Commercial Tax Officer and others, AIR 1963 SC 1811, held that a company registered under the Indian Companies Act, 1956 was not a citizen and could not invoke the protection of Article 19 of the Constitution of India and seek enforcement of fundamental rights. Relying on S.P. Changalvaraya Naidu (D) through L.Rs. vs. Jagannath (D) through L.Rs., (1994) 1 SCC 1, the respondents argued if a person’s case is based on falsehood, he had no right to approach the Court and could be summarily thrown out if he was withholding a vital document.
Issues:
Whether the said 2020 Act unconstitutional and violative of Part III of the Constitution of India?
Whether the state have competence under the Constitution of India to legislate on putting a bar on employment based on residence for private sector jobs?
Reasoning of the court:
While declaring the alleged 2020 Act as unconstitutional, the court noted that “...freedom given under Article 19 of the Constitution of India could not be taken away and the impugned provisions are falling foul and are liable to be declared unconstitutional as a wall could not be built around by the State and the spirit and soul of the oneness of the Constitution of India could not be curtailed by the parochial limited vision of the State.”
Also noting that there has to be equality of opportunity in public employment, it clarified that under Article 35 a state cannot make any laws in respect of the matters mentioned in Art. 16(3), that can only be done by the Parliament of India.
Citing the case of State of Tamil Nadu and others vs. K. Shyam Sunder and others, [(2011) 8 SCC 737], the court maintained that “it is beyond the purview of the State to legislate on the issue and restrict the private employer from recruiting from the open market for the category of employees who were receiving less than Rs.30,000/- per month.”
It also held that the Act is beyond the legislative competence of the State of Haryana under Article 246 and it is repugnant to the central laws, as it falls under Entry 81 of List I (Union List) of the Seventh Schedule of the Constitution of India, which deal with the subject matter of inter-State migration. The court observed that the concept of constitutional morality has been openly violated by introducing a secondary status to a set of citizens not belonging to the State of Haryana and curtailing their fundamental rights to earn their livelihood.
It held that the restrictions imposed in the Statute as such have far-reaching effects and cannot be held to be reasonable in any manner which would warrant no interference. Resultantly, they cannot be protected under Articles 19(5) and 19(6) of the Constitution of India.
Conclusion:
The court allowed the writ petitions and The Haryana State Employment of Local Candidates Act, 2020 was held to be unconstitutional and violative of Part III of the Constitution of India and ineffective from the date it came into force.
Shakuntala Devi V. State Of Up And 2 Ors.
2023: AHC:196401 (Allahabad High Court)
Facts:
The petitioner moved an application in front of the Inspector General, Registration stating that her husband was suffering from paralysis and ultimately died on 11.12.2020 so the post-retirement dues like pension and GPF amount should be paid. Her husband was given paid leave for certain days but was kept on extraordinary leave without pay for 967 days between 2018 and 2020. When asked about this the counsel said that it aligned with Rule 85 of the Financial Handbook Volume II. Further, the law was updated from the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 replaced by a new Act of Parliament the Right of Persons with Disabilities Act, 2016 which removed the bar of 40% disability. On this, the learned counsel said that the petitioner ought to have submitted certificates regarding her husband’s disability.
Arguments of the parties:
1. Petitioner:
The petitioner contended that her husband was suffering from the disease of paralysis and that the respondents proceeded to condone the various days of absence from duty in respect of the deceased employee and then finally also condoned his absence from duty for 967 days by granting leave without pay. This conduct of the respondents fully shows that they were satisfied with the documents furnished by the respondent-petitioner.
2. Respondent:
The respondent claimed that it just applied the rules of the Financial Handbook as per the State legislation. It also argued that it did not know of the increased disability of the deceased.
Issues:
1. Whether the deceased employee discriminated against in the matter of pension and salary as he was suffering from paralysis?
2. Whether the Inspector General, Registration overlook the new Act of Parliament and follow the state’s Handbook?
Reasoning of the court:
The court held that the ignorance of law is no excuse. It relied on the case of the Swadehi Cotton Mills Co. Ltd. vs. The Government of U.P. & ors, 1975 (4) SCC 37, in which the Supreme Court has very clearly held that everyone is bound to know the law. One cannot take plea of ignorance as to the development of law and, therefore, he may pass any order which is contrary to the law.
It interpreted Section 2(s) of the 2016 Act and held that it also contains paralysis in definition. Section 20 of the 2016 Act also makes it clear that no discrimination shall be meted out to persons suffering from a disability as defined under section 2, in the matters of employment.
It also held that despite there being parliamentary legislation, the respondents wholly, illegally and arbitrarily applied the principle of Financial Hand Book in not giving pay protection to its employee who suffered paralysis while serving the respondents and gradually acquired more than 80% disability and later died while in employment. Interpreting Article 246 of the Constitution of India it held that a Central legislation overrides a state legislation. So, the 2016 Act had an overriding effect on the Financial Handbook of the state.
Given the above view, due to the negligent behaviour of the administration, the petitioner and the dependents had to suffer for almost 3 years for no justifiable reasons, the court directed the respondent to pay arrears of salary for the 967 days. It also directed them to pay the salary of the deceased and the litigation cost amounting to Rs. 25k to the petitioner.
Conclusion:
The writ petition was allowed.
Thirumaavalavan v. State Of T.N.
W.P. No. 14582 of 2017 (Madras High Court)
Facts:
The petitioner challenged the Appointment of Law Officers of the High Court of Madras and its Bench at Madurai (Appointment) Rules, 2017, which were framed by the State government to regulate the selection and appointment of Law Officers in the High Court and its Bench. The petitioner claimed that the Rules of 2017 did not include reservation for women, scheduled castes, scheduled tribes, and minorities in the appointment of Law Officers, thereby violating the constitutional duty of equal opportunity in public employment. The petitioner sought to quash the Rules of 2017 and require the Tamil Nadu government to draft new rules to promote transparency and adequate representation of disadvantaged groups; and to issue public notification for inviting applications from all the eligible candidates for appointment as Law Officers.
Arguments of the parties:
1. Petitioner:
The petitioner claimed that the Law Officers are engaged on a contractual basis by the government and are paid from the public exchequer, hence, they are in public employment and hold a civil post. They contended that the Rules of 2017 were not transparent and did not follow any proper evaluation or selection procedure. The petitioner urged the court to quash the Rules of 2017 and instruct the government to draft new rules to provide reservations for women, scheduled castes, scheduled tribes, and minorities in the recruitment of law officers.
2. Respondent:
The respondents claimed the Law Officers do not hold a civil post or are in public employment, but are professional practitioners engaged by the government to do specific work by using their legal expertise. Further, the Rules of 2017 establish a clear method for selecting Law Officers that is transparent and based on merit. The government is duty obligated to select the most competent, capable, and worthy lawyers to represent it as Law Officers, and so, the reservation does not apply to such appointments.
Issues:
The court considered the following major issues while disposing of the petition:
1. Whether government-employed Law Officers hold a civil post or are in public employment, and thus qualify for reservation under Article 16(4) of the Indian Constitution?
2. Whether the Rules of 2017 are arbitrary, unreasonable, and likely to be overturned because they do not provide reservations in the appointment of Law Officers?
Reasoning of the court:
The court recognised that the government’s engagement of Law Officers is not on a tenure basis, but rather at its discretion. The Law Officers are not government servants or employees, but rather professional practitioners who use their legal knowledge to represent the government. The court relied on the Apex Court decision in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, which held that for the performance of duties in certain services and positions, it may not be advisable to provide for reservation. The post of Law Officer is one such position. Moreover, in the selection of Law Officers, the government is duty-bound to make earnest efforts to choose the best. Thus, while selecting the Law Officers, merit ought to be the sole consideration. The methodology adopted for selecting the Law Officers naturally has to be transparent and the invitation of the applications should be broad-based, to enable the government to select the most competent, capable and meritorious lawyers to represent it as Law Officers as, consequently, they would safeguard the public interest.
It also relied on the decision of the Supreme Court in State of Uttar Pradesh v. Ramesh Chandra Sharma and others, AIR 1996 SC 864, which held that the appointment of a legal practitioner as a District Government Counsel is only a professional engagement terminable at will and is not an appointment to a post under the government. So, the Law Officers, in the current case, are also not in public employment.
The petitioner’s argument that the Supreme Court in The Secretary, State of Karnataka and Ors v. Umadevi (3) and Ors, (2006) 4 SCC 1 held that the equality of opportunity is the hallmark and the Constitution provides for affirmative action to ensure that unequals are not treated as equals, was also debunked. The court maintained that the engagement of the Law Officers by the government is not on a civil post, nor these Law Officers are government employees thus the judgment relied on by the petitioners cannot be pressed in.
So, for the first issue, the court held that the Law Officers engaged by the government do not hold a civil post or are in a master-servant relationship or public employment, and hence, Article 16(4) of the Constitution of India is not applicable. In that case, the criterion to apply the reservation policy would also not be attracted. For these reasons, it cannot be held that reservation – vertical and/or horizontal needs to be provided while appointing Law Officers by the government.
For the second issue, the court determined that the Rules of 2017 are neither arbitrary nor liable to be quashed. The Rules of 2017 establish a clear mechanism for selecting Law Officers that is transparent and based on merit. The government is required to select the most proficient, competent, and capable individuals to represent it as Law Officers, and thus reservation is not warranted in such positions.
Conclusion:
The writ petition was dismissed.
Kiran P. Pawar v. Bata India Ltd.
Writ Petition No. 5862 of 2018 (Bombay High Court)
Facts:
The petitioner, Bata India Ltd., was granted permission from the Government of Maharashtra to keep its retail outlets open for 7 days a week and during extended working hours subject to various conditions including a weekly holiday for each employee and that the shops must be shut by 9:30 pm. Some of the salesmen did not accept the roster of Bata and refused to work accordingly. In consequence, Bata issued chargesheets to those salesmen and they were held guilty and their services were terminated by payment of one-month salaries. The salesmen approached the Labour Court which gave its decision in favour of the salesmen and reinstated them with 50% back-wages. Bata challenged the maintainability of the complaints, contending that the salesmen were not “workmen” under the Industrial Disputes Act or “employees” under the MRTU & PULP Act, as they were engaged in sales promotion activities.
Arguments of the parties:
1. Petitioner:
Bata argued that the salesmen are not “workmen” under the ID Act as they only do the job of promoting Bata’s products rather than any kind of manual, skilled or unskilled, technical or operational work. Instead, they are sales promotion employees under the Sales Promotion Employees (Conditions of Service) Act, 1976 which is restricted to the pharmaceutical industry and Bata is not a pharma industry. Accordingly, salesmen are also not “employees” under the MRTU and PULP Act, 1971.
2. Respondent:
The salesmen argued that they should be considered “workmen” as they do work like maintaining records, attending to customers, fitting footwear, marking prices, reporting shortages of stock, preparing inventories of stock and furniture, performing administrative work, helping managers in opening and closing of the shop, to fix posters, apart from promoting products, so these can be considered as manual, skilled, unskilled and clerical work under the ID Act. The salesmen should be considered employees under the MRTU & PULP Act, as they are covered by the definition of “employee”, which includes sales promotion employees under the SPE Act, irrespective of the industry they are engaged in.
Issue:
Whether the salesmen employed by Bata are “workmen” under the Industrial Disputes Act, 1947 and “employees” under the MRTU & PULP Act, 1971?
Reasoning of the court:
The High Court stated that the definition of ‘workman’ under Section 2(s) of the ID Act was broad enough to cover any person engaged in any business to perform any work unless he fell into one of the four exclusions specified in the definition. The High Court further highlighted that the term ‘employee’ under Section 3(5) of the MRTU & PULP Act was changed in 1999 to include sales promotion personnel under the SPE Act, with no exceptions for the pharmaceutical business. The High Court distinguished the Constitution Bench decision in the Supreme Court decision in H. R. Adyanthaya & Ors. vs. Sandoz (India) Ltd. & Ors., (1994) 5 SCC 737 on the grounds that it was pronounced in the context of the ID Act rather than the MRTU & PULP Act, and it did not address the modified meaning of ‘employee’ under the MRTU & PULP Act. The Court also relied on the Gujarat High Court’s decision in Bata India Ltd. A Company, Calcutta vs. B.H. Nathani, 1977 (0) AIJ-GJ 223985, which determined that salesmen hired by Bata in its retail locations were ‘workmen’ under the ID Act.
Therefore, the High Court upheld the findings of the Labour Court and the Industrial Court that the salesmen were ‘workmen’ under the ID Act and ‘employees’ under the MRTU & PULP Act. Following this, it awarded the salesmen a compensation of 75% of back wages instead of reinstatement as a long time has elapsed. It also held that the termination of the salesmen was illegal and arbitrary.
Conclusion:
The High Court dismissed the writ petitions filed by Bata and allowed the writ petitions filed by the salesmen.
December 2023 International News
Haycocks v. ADP RPO UK Ltd (UK)
[2023] EAT 129 (Employment Appellate Tribunal)
Facts:
The appellant, Joseph de Bank Haycocks, worked for the respondent, ADP RPO UK Ltd, as a recruiter for Goldman Sachs. Due to the impact of the coronavirus pandemic, the respondent decided to reduce its recruitment workforce by 2/16 positions in June 2020. The appellant was chosen for redundancy based on a scoring methodology that included 17 subjective criteria, which he argued were unjust and biased. He was not consulted on the criteria or scores, nor was he informed of his colleagues’ results. He filed an appeal against his dismissal with the respondent, but it was rejected. The current appeal was filed in the Employment Appellate Tribunal (EAT).
Arguments of the parties:
1. Appellant:
The appellant argued that he was not given adequate time to respond and the consultation exercise was unfair as per Section 98(4) of the Employment Act 1996. He also argued against the criteria as it was subjective which included 17 factors that made it unfair and unreasonable.
2. Respondent:
The respondent replied that the appellant was given three meetings to raise any potential issues or suggestions if he had, thus it was a fair dismissal. The subjective criteria for the scoring methodology were also reasonable and objective.
Issues:
Whether the appellant’s dismissal was fair under section 98(4) of the Employment Rights Act, 1996?
Reasoning of the court:
The EAT noted that Section 98(4) states that the fairness of dismissal depends on reasonableness and equity. Thus the process of redundancy depends on the fairness or reasonableness and the equity and the substantial merits of the case.
The appellate tribunal held that the respondent had failed to consult the appellant at the formative stage of the redundancy process when he could have influenced the decision on the criteria, the scoring or the alternatives to dismissal. Relying on British Coal Corporation Secretary of State for Industry ex parte Price & Others, it observed there was a clear breach of the principles of redundancy consultation led down by Glidewell LJ as “fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consulter thereafter considering those views properly and genuinely.”
The appellate tribunal also laid down the guiding principles for a fair redundancy consultation that should include early warning, adequate information and time to respond, viewing the process as a whole, and reasonableness in every case. The end goal is to avoid dismissal or reduce redundancy impact.
Conclusion:
The EAT allowed the appeal and remitted the case to the same ET to decide on the remedy and whether the appellant could not be dismissed had the fair procedure of consultation been followed.
Holly Cederman v Oleochem Project Management Limited (Australia)
[2023] FWC 2892, Fair Work Commission
Facts:
The respondent, Oleochem Project Management Limited, employed the applicant, Holly Cederman, as an offshore production chemist on a fixed-task basis. She became pregnant in late 2021 and requested a transfer to safe onshore employment under the Fair Work Act 2009. The respondent allegedly did not provide her with appropriate safe work or pay her wages for safe job leave. The applicant also claimed that the respondent denied her return-to-work date following her unpaid parental leave, failed to pay her personal leave benefits, and refused to give her long service leave. The applicant resigned from her position on June 19, 2023, and applied to the Fair Work Commission (FWC) for a general protection dispute involving dismissal.
Arguments of the parties:
1. Applicant:
The applicant stated that the respondent’s conduct during her pregnancy and postpartum period was damaging to her employment, put her under direct and indirect pressure, and forced her to resign. She claimed that the respondent violated its Fair Work Act obligations by failing to provide a safe job or pay her wages for safe job leave, disputing her return-to-work date, failing to pay her personal leave entitlements, refusing to grant her long service leave, and threatening to terminate her employment. She further claimed that the respondent discriminated against her due to her pregnancy and harassed her for exercising her employment rights. The applicant also alleged that the respondent contravened provisions of the Fair Work Act, such as sec. 81 (transfer to a safe job), sec. 84 (paid no safe job leave), sec. 76 (unpaid parental leave), and sec. 340 (adverse action).
2. Respondent:
The respondent argued that the applicant resigned freely rather than being terminated under Section 386 of the Fair Work Act. It claimed that it acted properly and lawfully in connection to the applicant’s employment and did not violate any of the provisions of the Fair Work Act. It denied discriminating against or victimising the applicant and stated that it attempted to accommodate her circumstances by providing her with numerous possibilities for a safe career, but the applicant refused to participate and produce clear and trustworthy medical evidence of her fitness for work.
Issue:
Whether the applicant was dismissed by the respondent under Section 386(1)(b) of the Fair Work Act, 2009?
Reasoning of the Fair Work Commission:
The FWC determined that the respondent dismissed the applicant in accordance with section 386(1)(b) of the Fair Work Act. It observed that the respondent’s behaviour, or a pattern of action, compelled the applicant to resign from her position. Despite the applicant’s provision of medical certificates and a personal risk assessment of her position, the respondent failed to provide an appropriate safe job or pay her wages for safe job leave, as required by sections 81 and 84 of the Fair Work Act.
The respondent contested the applicant’s return-to-work date following her unpaid parental leave, as required by Section 76 of the Fair Work Act, and refused to provide her long service leave, notwithstanding the applicant's contractual entitlement to it. The respondent threatened to terminate the applicant’s employment on multiple occasions if she did not attend a medical appointment set up by the respondent or give a medical report addressing the respondent’s concerns about her fitness for work. The respondent changed the applicant’s roster, hours of work, and point of hire without her knowledge or agreement, disregarding her contractual rights and preferences about her work location and responsibilities.
The FWC concluded that the respondent’s actions were irrational, illegal, and damaging to the applicant’s employment and that they left the applicant with no practical or meaningful alternative but to resign. The FWC further determined that the respondent violated several articles of the Fair Work Act, including Sections 81, 84, 76, 96, and 340, and that the applicant had a prima facie case of discrimination and victimisation.
Conclusion:
The FWC ordered the parties to attend a conference to resolve the dispute and reserved the right to make further orders or directions as necessary.
Labour Prosecutor v. Deliveroo, Belgium (Belgium)
2021/014148 (Labour Tribunal of Brussels)
Facts:
The Deliveroo couriers argued that they should be classified as “employees” because that would entitle them to more benefits under the Labour laws of Belgium.
Issue:
Whether the Deliveroo couriers were employees or independent contractors of Deliveroo?
Reasoning of the court:
The Labour Court held that the employment relationship between Deliveroo and its couriers is not of independent contractors. This leads to the conclusion that there exists an employer-employee relationship between them. Thus the couriers are reclassified as “employees” under the labour law. The court held that the couriers being classified as employees may be entitled to benefits such as a fixed salary, sick leave and paid vacation.
Conclusion:
The court ordered Deliveroo to reclassify the 28 couriers as employees.