October 2023

October 2023 National News

Thyssen Krupp Industries India Pvt. Ltd. v. Suresh Maruti Chougule

Civil Appeal No. 6586 of 2019

Facts:
This was a reference which came up for decision by a 3-judge bench of the Supreme Court due to the opinion of a division bench that the decision of the Court in Paradip Port Trust, Paradip v. Their Workmen [(1977) 2 SCC 339] needs to be reconsidered. The facts of the dispute were not recorded by the Court in its order.
The Court also heard multiple appeals along with this reference.
Arguments of the parties:
The arguments of the parties have not been recorded by the Court in its judgment.
Issue:
Is there a need to reconsider Paradip Port Trust with regards to its holding regarding section 36 of the Industrial Disputes Act, 1947?
Reasoning of the Court:
The Court held that it was in agreement with Paradip Port Trust and that there was no need to revisit that case. C.A. No. 6856/2019 was not decided on merits since the Court was told that the matter had been settled out of court. The other cases were dismissed on the basis of the holding in C.A. No. 6586/2019 without much comment.
Conclusion:
The appeal was disposed of in the above terms.

Balram Singh v. Union of India

2023 SCC OnLine SC 1386

Facts:
This was a petition filed under Article 32 of the Constitution. It was prayed that directions be issued to the Union of India, all States, and all Union Territories regarding the implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.
The Court had earlier dealt with a similar matter in Safai Karamchari Andolan v. Union of India [(2014) 11 SCC 224]. In that case, the Court had issued directions regarding the implementation of the 2013 Act.
Arguments of the parties:
Numerous representations were made to the Court in this case.
Issue:
Which directions, if any, did the Court have to issue?
Reasoning of the Court:
After carrying out an extensive discussion of the representations made by various parties, the Supreme Court issued the following directions:
“(1) The Union should take appropriate measures and frame policies, and issue directions, to all statutory bodies, including corporations, railways, cantonments, as well as agencies under its control, to ensure that manual sewer cleaning is completely eradicated in a phased manner, and also issue such guidelines and directions as are essential, that any sewer cleaning work outsourced, or required to be discharged, by or through contractors or agencies, do not require individuals to enter sewers, for any purpose whatsoever;
(2) All States and Union Territories are likewise, directed to ensure that all departments, agencies, corporations and other agencies (by whatever name called) ensure that guidelines and directions framed by the Union are embodied in their own guidelines and directions; the states are specifically directed to ensure that such directions are applicable to all municipalities, and local bodies functioning within their territories;
(3) The Union, State and Union Territories are directed to ensure that full rehabilitation (including employment to the next of kin, education to the wards, and skill training) measures are taken in respect of sewage workers, and those who die;
(4) The court hereby directs the Union and the States to ensure that the compensation for sewer deaths is increased (given that the previous amount fixed, i.e., ₹ 10 lakhs) was made applicable from 1993. The current equivalent of that amount is Rs. 30 lakhs. This shall be the amount to be paid, by the concerned agency, i.e., the Union, the Union Territory or the State as the case may be. In other words, compensation for sewer deaths shall be ₹ 30 lakhs. In the event, dependents of any victim have not been paid such amount, the above amount shall be payable to them. Furthermore, this shall be the amount to be hereafter paid, as compensation.
(5) Likewise, in the case of sewer victims suffering disabilities, depending upon the severity of disabilities, compensation shall be disbursed. However, the minimum compensation shall not be less than ₹ 10 lakhs. If the disability is permanent, and renders the victim economically helpless, the compensation shall not be less than ₹ 20 lakhs.
(6) The appropriate government (i.e., the Union, State or Union Territories) shall devise a suitable mechanism to ensure accountability, especially wherever sewer deaths occur in the course of contractual or “outsourced” work. This accountability shall be in the form of cancellation of contract, forthwith, and imposition of monetary liability, aimed at deterring the practice.
(7) The Union shall device a model contract, to be used wherever contracts are to be awarded, by it or its agencies and corporations, in the concerned enactment, such as the Contract Labour (Prohibition and Regulation Act), 1970, or any other law, which mandates the standards – in conformity with the 2013 Act, and rules, are strictly followed, and in the event of any mishap, the agency would lose its contract, and possibly blacklisting. This model shall also be used by all States and Union Territories.
(8) The NCSK, NCSC, NCST and the Secretary, Union Ministry of Social Justice and Empowerment, shall, within 3 months from today, draw modalities for the conduct of a National Survey. The survey shall be ideally conducted and completed in the next one year.
(9) To ensure that the survey does not suffer the same fate as the previous ones, appropriate models shall be prepared to educate and train all concerned committees.
(10) The Union, State and Union Territories are hereby required to set up scholarships to ensure that the dependents of sewer victims, (who have died, or might have suffered disabilities) are given meaningful education.
(11) The National Legal Services Authority (NALSA) shall also be part of the consultations, toward framing the aforesaid policies. It shall also be involved, in co-ordination with state and district legal services committees, for the planning and implementation of the survey. Furthermore, the NALSA shall frame appropriate models (in the light of its experience in relation to other models for disbursement of compensation to victims of crime) for easy disbursement of compensation.
(12) The Union, State and Union Territories are hereby directed to ensure coordination with all the commissions (NCSK, NCSC, NCST) for setting up of state level, district level committees and commissions, in a time bound manner. Furthermore, constant monitoring of the existence of vacancies and their filling up shall take place.
(13) NCSK, NCSC, NCST and the Union government are required to co- ordinate and prepare training and education modules, for information and use by district and state level agencies, under the 2013 Act.
(14) A portal and a dashboard, containing all relevant information, including the information relating to sewer deaths, and victims, and the status of compensation disbursement, as well as rehabilitation measures taken, and existing and available rehabilitation policies shall be developed and launched at an early date.”

Sudheer Kumar Sharma v. State of Madhya Pradesh

2023 SCC OnLine MP 3035

Facts:
The petitioner had been working as a Samooh Prerak. He was transferred multiple times and he was eventually transferred from Rewa to Bhind. A writ petition was filed by him against this transfer order before the Madhya Pradesh High Court. The High Court stayed the order and eventually asked the respondent to take the petitioner’s representation into consideration. However, his representation was rejected which led to him filing another writ petition. This petition was dismissed by the High Court.
He tried to start working at Bhind due to this but he was not allowed to do so. He filed another writ petition before the High Court. The Court asked the respondent to allow the petitioner to start working at Bhind if it was legal to do so. After this petition had been disposed of in the above manner, the respondent contended that the employment of the petitioner had been terminated under clause 17 of his contract of employment. It was terminted since he had been on unauthorized leave for more than one month. This led to the filing of the instant petition.
Arguments of the parties:
1. Petitioner:
Counsel argued that this was not a case of unauthorized absence as the petitioner had been contesting the transfer order before the Madhya Pradesh High Court during that time period.
2. Respondent:
It was argued that as per Clause 8.2 framed under the Madhya Pradesh Rural Livelihood Mission, no right to claim joining had accrued to the petitioner. It was contended that there is an alternative remedy of approaching the appellate authority available under that clause due to which the instant petition was not maintainable.
Issue:
Could the respondent dismiss the petitioner due to his prolonged absence from work?
Reasoning of the Court:
The Court decided in favour of the respondent. It noted that there had been a gap of around 3 months between the point in time at which the representation was made by the petitioner and the point in time at which the petitioner filed a writ petition against the rejection of his representation. Thus, it held that the respondent had been correct in contending that clause 17 had been triggered due to unauthorized leave for a great period of time.
Conclusion:
The petition was dismissed.

Chaman Lal v. State of Himachal Pradesh

2023 SCC OnLine HP 1469

Facts:
The petitioners had been appointed as Tehsil Welfare Officers under the Government of Himachal Pradesh in 2010 as contractual workers. They were regularized in May 2016 and they were given the lowest seniority amongst their peers with the same post. The initial appointment and subsequent regularization took place as per the provisions of the R & P Rules applicable to the post of Tehsil Welfare Officer.
The petitioners approached the Himachal Pradesh High Court in order to get their seniority fixed from the date of their initial appointment in 2010.
Arguments of the parties:
The arguments made by counsel were not fully recorded by the Court in its verdict.
Issue:
Were the petitioners entitled to have their seniority fixed from the date of their initial appointment?
Reasoning of the Court:
The Court was of the opinion that there was no valid opinion for initially hiring the petitioners on a contract basis and then regularizing their employment. It held that the respondent must have done this in order to exploit potential workers by not paying them the actual salary attached to the post.
It held that the actions of the State were contrary to Article 14 of the Constitution due to them being arbitrary in nature. The Court specifically relied on cases such as Sh. Taj Mohammad v. State of Himachal Pradesh [CWP No. 2004 of 2017 dated 03.08.2023] of the Himachal Pradesh High Court to hold that the petitioners were entitled to succeed in the present proceedings. As a corollary, the Court held that they would also be entitled to use the contractual period of their employment for obtaining annual increments and pensionary benefits.
The respondent’s counsel relied on Jai Dev Gupta v. State of Himachal Pradesh [(1997) 11 SCC 13] to argue that any benefits which might accrue to the petitioners due to this judgment be restricted to the three years prior to the passage of this verdict. The Court distinguished this case and thus held that this case was not applicable.
Conclusion:
The petition was allowed.

Karnataka Power Transmission Corporation Ltd. v. S. Kiran

2023 SCC OnLine Kar 99

Facts:
The respondent had been an employee of the appellant holding the post of Station Attendant (Grade II). However, he was dismissed from his post since he had remained absent from duty without permission for 632 days. The labour court decided in favour of the respondent and declared the dismissal to be illegal in nature. A writ petition filed by the appellant before the Karnataka High Court also came to naught. Hence, the appellant filed the instant appeal against the adverse decision of the single judge in the matter of the writ petition.
Arguments of the parties:
1. Appellant:
It was argued by the representative of the appellant that the dismissal was justified since not doing so would have led to a lot of indiscipline amongst its employees.
2. Respondent:
It was argued that the respondent had been undergoing mental distress during the period during which he had remained absent from work.
Issue:
Was the dismissal of the respondent valid in law?
Reasoning of the Court:
The Court was of the opinion that mental distress is a valid reason for not coming to work since it can be of such a nature as to incapacitate someone and prevent them from doing work. It specifically referred to the judgment of the Supreme Court in Ravinder Kumar Dhariwal v. Union of India [(2023) 2 SCC 209] on this point.
The Karnataka High Court held that the appellant had to act like a model employer due to it falling within the ambit of ‘State’ as defined by Article 12 of the Constitution. The Court noted that the appellant had not filled in the vacancy created by the dismissal of the respondent. It further agreed with the decision of the smaller bench due to which it refused to enter a verdict in favour of the appellant.
It further noted that it had stated earlier in Tammanna v. Renuka [2009 SCC OnLine Kar 123] that appeals against orders passed by single judge benches in Article 227 matters cannot ordinarily be filed. This was cited as another reason to not entertain the appeal.
Conclusion:
The appeal was dismissed.

Neelam Kumari v. University of Delhi

2023 SCC OnLine Del 6452

Facts:
The petitioner had been appointed as a temporary female attendant at one of the hostels in the South Campus of Delhi University for a period of six months starting 4th of July 2018. She had gotten maternity leave approved for the period starting 5th of May 2022 and ending 4th November 2022. However, after her maternity leave was over, it was notified to her that she would not be paid for the period during which she was on maternity leave. She was further told that her services had been terminated and that she had been replaced. However, the respondent had extended the term of the petitioner’s employment till the 31st of December 2022 by a letter dated 2nd of July 2022.
This led the petitioner to file the instant writ petition.
Arguments of the parties:
1. Petitioner:
Counsel for the petitioner contended that the respondent had not complied with section 12 of the Maternity Benefit Act, 1961 since the appellant’s employment had been terminated while she was still on maternity leave. It was further argued that section 11 of the University Non-Teaching Employees (Terms and Conditions of Service) Rules, 2013 had not been complied with. This provision mandated that every temporary employee must be served with notice of termination one month before their service is terminated.
Lastly, it was argued that the 1961 Act did not apply to only permanent employees. The respondent had not complied with its own notification dated 4th of January 2022 through which it was recognised that maternity benefit was to be granted to even temporary workers.
2. Respondent:
Counsel contended that the appellant was entitled to maternity benefit only during the period of her engagement which was said to end on the 30th of June 2022. Counsel argued that this would have been in consonance with the notification dated the 4th of January 2022. It was further argued that reliance could not be placed on documents like the letter dated the 21st of June 2022 since they were internal documents with no binding value.
Lastly, it was argued that the termination was warranted since she had not reported on the last day of her term of employment, i.e. the 30th of June 2022, despite being required to do so. Hence, her contract had not been further renewed.
Issues:
1. Could the petitioner’s employment be terminated without notice?
2. Was the respondent required to provide pay to the petitioner for the period during which she was on maternity leave?
Reasoning of the Court:
The Delhi High Court decided the first issue in favour of the petitioner by holding that it is a well accepted principle that notice be given to contractual employees before their service is terminated. It further referred to the verdict of the Supreme Court in Kavita Yadav v. Ministry of Health & Family Welfare Department [2023 SCC OnLine SC 1067] since it was held in that case that maternity benefit can lead to an extension of the contractual period of employment if it cannot fit within that period.
With regards to the second issue, the Court invoked the Supreme Court’s judgment in Municipal Corporation of Delhi v. Female Workers (Muster Roll) [(2000) 3 SCC 224]. In that case the Court had held that the provisions of the 1961 Act are applicable to all kinds of female workers. Hence, the Court held that the second issue also had to be decided in favour of the petitioner.
The Court held that the instant judgment would not act as precedent due to it having being given by keeping in mind the peculiar facts and circumstances of this case.
Conclusion:
The petition was allowed.

State of Kerala v. Durgadas

OP(KAT) No. 267 of 2021 (Kerala High Court)

Facts:
The respondent had wanted to be employed as a police constable in the India Reserve Battalion Commando Wing. He fulfilled all the relevant criteria except for the test of antecedent character. As per Rule 10(b)(iii) of the Kerala State & Subordinate Services Rules, 1958, the Government of Kerala had to be satisfied with the character and antecedents of the person before appointing him as a government employee. The petitioner was of the opinion that Rule 10(b)(iii) could not be said to be fulfilled in the instant case since the respondent had been involved in a criminal case involving sections 419, 452, 307, and 506(ii) of the Indian Penal Code, 1860. He was acquitted under section 235(1) of the Code of Criminal Procedure, 1973 only because all the witnesses of the prosecution had turned hostile. Hence, he was denied employment.
This led the respondent to approach the Kerala Administrative Tribunal. The KAT set aside the order of the petitioner through which appointment had been denied to the respondent on the grounds that there was no other basis for the denial except for the failed criminal case. This led the petitioner to approach the Kerala High Court.
Arguments of the parties:
1. Petitioner:
It was argued by the State of Kerala that the KAT had interfered with the autonomy and choice of the petitioner.
2. Respondent:
The counsel for Durgadas placed reliance on the cases of Joginder Singh v. UT of Chandigarh [(2015) 2 SCC 377] and Pramod Singh Kirar v. State of Madhya Pradesh [(2023) 1 SCC 423]. In the former, it was held by the supreme Court that a criminal case in which the person had been acquitted would not be a strong bar to appointment to government posts. The same conclusion was reached in the latter case.
Issue:
Would a criminal case in which a person seeking appointment has been acquitted be sufficient to deny appointment by stating that good character and antecedents have not been established?
Reasoning of the Court:
The Court held that past criminal cases are merely one of the factors to be considered while determining whether the would-be employee has good character and antecedents. It held that the outcome of a criminal case was not as important as the revelations which are made regarding the character of the would-be employee during the trial and investigation. If an acquittal has taken place, then the Government would have to carry out an independent inquiry into what the incident giving rise to the case discloses about the character of the person. However, such an inquiry would be required in instances of acquittal only if the prosecution allegations and other materials brought on record during the case are not sufficient for arriving at a finding regarding the character of the person.
After laying down this position of law, the Court took a look at the order of the Additional Director of Police (Intelligence) through which it was declared that the respondent could not be appointed as a constable. It held that the order was based on insufficient evidence insofar as the investigating officer was dead, all the witnesses had turned hostile, and that there was nothing against the respondent except the allegations made by the prosecution. The Court held that it was unsafe to arrive at a finding regarding the character of the respondent solely based on the allegations made by the prosecution. Hence, the Court concurred with the order passed by the KAT.
Conclusion:
The petition was dismissed.

Dipali Mitra v. Coal India Ltd.

2023 SCC OnLine Cal 3744

Facts:
The petitioners were the relatives of an employee of the Eastern Coalfields Ltd (‘ECL’). This was a subsidiary of the respondent which itself was an undertaking of the Government of India. This employee had passed away before his employment with the respondent had ended. They wanted either petitioner no. 2 or petitioner no. 3, being the son-in-law and daughter of the deceased respectively, to obtain compassionate appointment from the respondent. However, the compassionate appointment of petitioner no. 3 was prevented by Clause 9.3.3 of the National Coal Wages Agreement-VI (‘NCWA’) since it mentioned that only an “unmarried daughter” could obtain compassionate appointment while the petitioners were married. Hence, she filed the instant writ petition to obtain a writ of mandamus directing the respondent to declare clause 9.3.3. to be discriminatory in nature and to read “unmarried daughter” as just “daughter”. A writ of mandamus directing the respondent to pay monetary compensation for the period starting from the death of the deceased and ending on the compassionate appointment of either petitioner no. 2 or petitioner no. 3.
This verdict was not a part of the original proceedings before the Calcutta High Court. The original writ petition filed before the Calcutta High Court had been disposed of with an order to the Chairman of the respondent to consider the representations made by the petitioners. A review order was filed by the respondent which led to a modification in the initial order passed by the Calcutta High Court. Instead of the Chairman of the respondent having to consider the representations, the Chairman-cum-Managing Director of ECL. had to consider the representations instead. However, these representations were rejected by an order of the Director (Personnel) of ECL on various grounds viz. petitioner no. 1, i.e. the wife of the deceased had refused monetary consideration which had been offered instead of compassionate appointment, petitioner no. 2 was doing his PhD in Sweden, the income being earned by petitioner no. 2 through paternal property, that the second and third petitioners had not been living with the deceased etc. An appeal sent through a letter to the Chairman-cum-MD of ECL did not lead to anything since no response was sent to the appeal. This led to the initiation of the proceedings which led to the instant verdict.
Arguments of the parties:
1. Petitioners:
Elaborate arguments were made by the petitioners. It was argued that petitioner no. 2 did not have any streams of income besides LIC Commission. The mere fact that he had CMS Club Membership for the year 2016-17 did not mean that he was earning any significant income. It was also argued that clause 9.3.3. did not make it necessary to residential status or financial dependency on the deceased if direct descendants are seeking compassionate appointment. In any case, it was argued that petitioner no. 2 had been living with the deceased as a ‘domesticated son-in-law’.
By relying on the judgment of the Chhattisgarh High Court in Asha Pandey v. Coal India Ltd. [(2016) 3 CGLJ 98] and the Supreme Court’s verdict in Savita Samvedi v. Union of India [(1996) 2 SCC 380] it was argued that clause 9.3.3. was violative of Articles 14 and 15 of the Constitution. Reliance was also placed on Eastern Coalfield Ltd. v. Anari Devi [2014 SCC OnLine Cal 14319] to argue that compassionate appointment can be granted to even the son-in-law of a deceased employee. Further, it was argued that compassionate appointment is a vested right under the NCWA.
The argument regarding maintainability of the writ petition was rebutted by the petitioners by arguing that it was not necessary to make trade unions parties to proceedings of such a nature.
2. Respondents:
The respondents’ arguments exceeded those of the petitioners in terms of quantity. Hence, only the most important arguments are being summarized here. It was argued that the writ petition was not maintainable since the NCWA is prepared and maintained by multiple different trade unions which had not been made a party to the petition. Counsel contended that the first petitioner had provided two different Dependent Certificates signed by the same MLA with each showing contradictory ages of the three petitioners. Further, the NOC provided by the son of the deceased had only talked about giving compassionate appointment to petitioner no. 1 only.
Counsel relied on Putul Rabidas v. Eastern Coalfields Ltd. [(2018) 1 Cal LT 436] in which it had been held that the terms and conditions laid down in the NCWA cannot be deviated from. Further, reliance was placed on the apex court’s verdict in State Bank of India v. Raj Kumar [(2010) 11 SCC 661] to show that compassionate appointment is neither a source of recruitment nor an entitlement of the deceased’s dependents.
It was pointed out that a wife and son are direct dependents within the meaning of the NCWA due to which they could be compassionately appointed unlike a son-in-law. Further, it was pointed out that married daughters are not eligible for compassionate appointment under the NCWA. Further, the third petitioner was relying on the income of the second petitioner for her needs which was claimed to be sufficient for fulfilling both of their needs.
It was argued that the petitioners had not come seeking compassionate appointment with clean hands due to which they were not eligible for such appointment as was held by the Calcutta High Court in Babulal Majhi v. Eastern Coalfields Ltd. [(2012) 3 CHN 474].
Issues:
The Court framed the following issues for its considerations:
1. Is compassionate appointment a vested right?
2. Is the distinction between married and unmarried daughters drawn by clause 9.3.3. of the NCWA ultra vires Articles 14 and 15 of the Constitution?
3. Do even direct dependents need to show dependency under clause 9.3.3. of the NCWA?
4. Can petitioners nos. 2 and 3 be considered eligible for compassionate appointment?
Reasoning of the Court:
With regards to the first issue, the Court held that compassionate appointment is not a vested or a hereditary right. It relied on its own judgment in Ipsita Chakrabarti v. State of West Bengal [(2018) 3 CHN 472] in which it had distilled the reasoning involved in multiple Supreme Court judgments on the same issue.
Coming to the second issue, the Court extensively quoted from its judgment in State of West Bengal v. Purnima Das [(2017) 4 CHN 362] in which it had dealt in detail with the issue of whether compassionate appointment can take place for married daughters. It also relied on the test of reasonable classification laid down by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar [(1952) 1 SCC 1] to arrive at its decision. It held that the purpose of compassionate appointment is to grant relief to family members of the deceased employee due to which the distinction between married and unmarried daughters did not satisfy the test of reasonable classification. It called out the misogyny inherent in not granting compassionate appointment to married daughters while providing it to married sons. It further pointed out that this distinction had been held to be unconstitutional in Smt. Usha Singh v. State of West Bengal [(2003) 1 Cal LJ 407]. Thus, it decided the second issue in favour of the petitioners by holding that it was ultra vires Articles 14 and 15. It also held that the main considerations for granting compassionate appointment are dependency on the deceased employee and financial exigency.
While considering the third issue, the High Court indirectly cited the Supreme Court’s verdict in Fertilizers and Chemicals Travancore Ltd. v. Anusree K.B. [2022 SCC OnLine SC 1331] by citing its unreported decision in Ankita Saha v. State of West Bengal [W.P.A. 12287 of 2019] which had cited the former. In Anusree K.B. it was reiterated by the Supreme Court that the main considerations for granting compassionate appointment are financial exigency. Hence, it decided the third issue in favour of the respondents by holding that even direct dependents had to prove dependency in order to be considered eligible for compassionate appointment.
Coming to the fourth issue, the Court held that the petitioners had not come with clean hands before the Court after taking into consideration all the relevant facts and circumstances.
It held that the argument of the respondents regarding the maintainability of the petition did not have any merit and hence dismissed that contention.
Conclusion:
The petition was dismissed.

Rehmat Fatima v. State of NCT of Delhi

2023 SCC OnLine Del 6307

Facts:
The petitioner was appointed to the post of stenographer at the Delhi State Consumer Forum on a contractual basis for one year on the 7th of February, 2013. The employment period was extended for one more year on the 10th of March 2014 with retrospective effect from 11th of February 2014. It kept on being extended each year in increments of one year. Ultimately, it was extended for one year from 2nd April 2017 to 31st March 2018 through a letter dated 21st July 2017.
The petitioner went on maternity leave for the period starting on the 1st of March 2018 and ending on the 27th of August 2018. She was not allowed to carry out her duties when she came back on the 28th and her contract was not extended beyond the 31st of March of that year. However, she was reappointed with retrospective effect from the 8th of September 2018 till 30th June 2019 through a letter dated 15th November 2018. She was dismissed through a non-speaking order on the 17th of October 2019. No reasons were given to her despite persistently enquiring as to the cause behind termination. This eventually led to the instant writ petition being filed before the Delhi High Court.
Arguments of the parties:
1. Petitioner:
It was argued that the petitioner had been exercising her rights under the Maternity Benefit Act, 1961 and that the actions of respondent no. 3, i.e. the Registrar of the Delhi State Consumer Forum, were arbitrary, unjust, and violative of principles of natural justice. Counsel also contended that the rights of the petitioner under Articles 14, 15(3), 16, 19(1)(g), and 42 of the Constitution were being violated. This is admittedly a rather peculiar argument to make since Article 42 does not set out any right which can be claimed by an individual against a State. It was also argued that the contract of the petitioner ought to have been extended for one more year due to her having gone on maternity leave partially outside the period of her employment.
2. Respondents:
It was argued that the maternity leave taken by the petitioner had never been approved. It was argued that the petitioner could not have taken maternity leave as per the terms of her contract of employment.
Counsel claimed that no reason needed to be appointed for terminating the services of the petitioner as per the terms of her contract due to which the doctrine of estoppel prevented her from seeking the factors which led to her termination. It was also pointed out that a request made by her for extension of her period of employment was not allowed.
It was submitted that the petitioner had not been working under a single contract for all the years during which she was working for the respondents. It was argued that she had entered into a new contract when the last extension was granted to her in 2018. Her appointment had been contingent on her accepting the new contract.
Further, she could not claim extension of her contract period since the post of one regular stenographer which existed till then, and which had enabled her to be appointed on a contractual basis, had been abolished.
Issues:
The following issues were framed by the Court:
1. Was the petitioner entitled for maternity benefits out of her contractual services to the respondent despite the fact that the petitioner’s maternity benefits extended beyond her contractual period?
2. Can a writ of mandamus be issued by the Court in order to direct the respondents to allow the petitioner to continue on the post of stenographer on contractual basis and not to replace the petitioner with similarly situated contractual employees?
Reasoning of the Court:
While deciding this issue, the Court noted the recent decision of the Supreme Court in Dr. Kavita Yadav v. Secretary, Ministry of Health and Family Welfare Department [2023 SCC OnLine SC 1067]. In that decision it had been held that the contractual period of employment of an employee would not be a bar to fully enjoying the maternity benefit to which that employee is entitled if that benefit does not fit within the employment period. It cited the judgment of the Court in Municipal Corporation of Delhi v. Female Workers (Muster Roll) [(2000) 3 SCC 224] along with various judgments of different High Courts.
The Court noted that the respondents had been denying maternity leave to persons who were employed on contractual basis despite there being nothing in the 1961 Act which would justify such actions. Keeping in mind the case law which had been discussed by it, it answered the first issue in favour of the petitioner.
While considering the second issue, the Court relied heavily on the judgments of the Supreme Court in M. Ramanatha Pillai v. State of Kerala [(1973) 2 SCC 650] and Avas Vikas Sansthan v. Engineers Assn. [(2006) 4 SCC 132]. In the former it was held that Article 311 is applicable to all government servants, whether they be of a permanent or temporary nature. In the latter, it was held that the right to abolish posts is a right of the sovereign. Any person who is holding a post which is to be abolished would not obtain any right to re-appointment upon the abolition of the post. Thus, the Court answered the second issue against the appellant.
It was stated by the Court that this verdict would not act as precedent due to it being delivered in the peculiar facts and circumstances of this case.
Conclusion:
The petition was partially allowed.

Beldih Club Jamshedpur v. State of Jharkhand

L.P.A. No. 187 of 2023 (Jharkhand High Court)

Facts:
The petitioner was a society registered under the Societies Act, 1860. It was paid a visit by an ESI Inspector appointed under the Employee State Insurance Act, 1948 (‘1948 Act’). The Inspector was told that the petitioner had entered into an arrangement with the Tata Main Hospital to provide medical benefits and other benefits equivalent to those provided for in the 1948 Act to its employees.
A letter was sent by the Inspector to the petitioner in which it was stated that the petitioner amounted to a “factory” within the meaning of section 2(12) of the 1948 Act due to which it could not dodge the 1948 Act by simply claiming that benefits were provided to its employees. After some time, another letter was sent to the petitioner from the Deputy Director, ESIC stating that the petitioner had not been fulfilling its obligations under sections 26 and 40 of the 1948 Act. Eventually, the Assistant Director, ESI asked the petitioner to pay its dues. During this correspondence, the petitioner had also claimed that it did not come within the regulatory framework of the 1948 Act. This led the petitioner to approach the Jharkhand High Court and file a writ petition. The High Court asked the petitioner to raise its grievances before the Regional Director, State Insurance Corporation, Jharkhand.
The representations of the petitioner were rejected due to which it again approached the High Court with a writ petition. This petition was rejected since the High Court declined to interfere with the order passed by the Regional Director. This rejection led the petitioner to file the instant intra-court appeal. The appeal was filed since the High Court held that the petitioner had become liable to pay dues since 2000.
Arguments of the parties:
1. Petitioner:
Before the lower bench, Counsel had conceded that the dispute was fully covered by the verdict of the Supreme Court in Bangalore Turf Club Ltd. v. Regional Director, ESIC [(2014) 9 SCC 657]. In that case it had been held that any establishment where a systematic economic or commercial activity is carried on in its premises will be hit by the framework of the 1948 Act. However, counsel relied on ESIC v. Distilleries & Chemical Mazdoor Union [(2006) 6 SCC 604] and ESIC v. Jardine Henderson Staff Association [(2006) 6 SCC 581]. These judgments were used to argue that liability ought to be affixed on the petitioner from the date of the verdict in the instant proceedings.
In the appeal, it was argued that since the issue of whether the petitioner is hit by the 1948 Act was itself decided indirectly by the Supreme Court’s verdict in Bangalore Turf Club Ltd., the petitioner had become liable under the 1948 Act after 2014. It was claimed that the statutory interest which the petitioner was made to pay was also unjust due to the main argument that it was making.
2. Respondent:
Counsel contended that the petitioner could not claim that it was free from the application of the 1948 Act merely because the application of the 1948 Act was under dispute. It was pointed out that the 1948 Act had become applicable from 1948 itself. The respondent argued that there was nothing wrong with the petitioner being made to pay statutory interest.
Issue:
From when did the petitioner become liable to pay contributions under the 1948 Act?
Reasoning of the Court:
The Jharkhand High Court stated that the main object of the 1948 Act is to provide social security measures to industrial workers and that it is a beneficial piece of legislation. It emphasised that usually the literal rule of interpretation has to be used while reading statutes. It cited numerous cases with one of them being Regional Director, ESIC v. Francis De Costa [1993 Supp (4) SCC 100]. In that case it was held that the literal interpretation can be departed from if doing so would be necessary to give effect to the object and purpose of an Act or to prevent injustice. Another notable judgment cited by it was its own verdict in ESIC v. Jayalakshmi Cotton and Oil Products (P) Ltd. [1980 Lab IC 1078 (A.P.)] in which it was held that the 1948 Act was a beneficial piece of legislation which has to be liberally interpreted.
The Court rejected the contention of the petitioner that it would be liable to pay dues only after 2014. It held that the statutory interest which the petitioner was made liable to pay could not be waived or relaxed on any ground.
Conclusion:
The appeal was dismissed.

Mid and South Essex NHS Foundation Trust v. Mrs. Catriona Stevenson

[2023] EAT 115
[Employment Appeal Tribunal (UK)]

Facts:
The respondents had been holding the posts of ‘Head of Human Resources’ while being employed by the appellant. However, their posts became redundant due to internal restructuring carried out by the appellant. Hence, they were dismissed due to their redundancy. Prior to their dismissal but after they became redundant, the respondents had rejected offers regarding similar jobs that they had received.
The appellant refused to pay them redundancy payments under section 135 of the Employment Rights Act, 1996. This led to the original case before the Employment Tribunal at East London. This was eventually decided in favour of the respondents by holding that section 135 was applicable since there had been no unreasonable rejection of a job offer within the meaning of section 141(2).
Arguments of the parties:
1. Appellant:
The main contention of the appellant was that the lower Tribunal had arrived at a wrong conclusion by deciding that the suitability of the job which had been offered to the respondents was not relevant for determining whether the rejection had been unreasonable in nature. The other argument made by the appellant was that the Employment Tribunal failed to take into consideration how the facts “ought to have appeared” to the claimants.
2. Respondents:
The arguments made by the respondents in the appeal were not reproduced in the judgment.
Issue:
Was section 141(2) of the 1966 Act attracted to the facts? / Was the rejection of the job offers ‘unreasonable’ in nature?
Reasoning of the Court:
The Court rejected the first contention made by the appellant that the lower Tribunal did not take into consideration the suitability of the jobs while arriving at its decision. It held that the contrary was the case since the lower Judge had gone so far as to state that the perceptions of the respondents regarding certain aspects of the jobs which they had been offered were “objectively groundless” in nature.
With regards to the second contention, the Court held that there is no need to look into how the job which has been offered ought to appear from the perspective of the employees in each and every case. The words “ought to have appeared”, as used by the Employment Appellate Tribunal in Bird v. Stoke-On-Trent Primary Care Trust [UKEAT/0074/11/DM], merely provide guidance regarding when it can be said that the rejection of a job offer was unreasonable so as to trigger section 141(2). It held that the lower Tribunal had checked the facts from the perspective of the employees and held that the rejection had not been unreasonable. Hence, it held that the appellant had not established that there had been any error of law in the judgment of the Employment Tribunal.
Conclusion:
The appeal was dismissed.

October 2023 International News

Miss AB v. Royal Borough of Kingston upon Thames

Case No: 2303616/2021 (Employment Tribunal at London South)

Facts:
The claimant in this case had been born a man but had opted for reassignment of her sex. Hence, she had the protected characteristic of gender reassignment as per section 7 of the Equality Act, 2010 (‘2010 Act’). Despite giving notice of this decision about eight months before the claimant underwent reassignment on 1st July 2020, the Human Resources Department of the respondent made no effort to create appropriate policies. The claimant stated that the respondent had failed to provide her with support despite knowing about her decision. Further, the policies of the respondent had not been in line with the Equality Act, 2010 till December 2021.
Further, derogatory language towards the claimant had been used in a chain of mail correspondence in which she disagreed with colleagues regarding the safety of a lighting system. The matter was eventually escalated by the claimant by bringing the HR Department’s attention to the mail thread. After the mail thread incident, the claimant noticed that she was not being given work and was being removed from matters which had been assigned to her. She had to various other difficulties such as difficulty in changing her name in the systems of the respondent. In other words, she was deadnamed till February 2022.
Arguments of the parties:
1. Claimant:
It was argued by the claimant that she was the victim of direct discrimination within the meaning of section 13 of the 2010 Act since she was discriminated against on the basis of a protected characteristic viz. gender reassignment.
2. Respondent:
The submissions of the respondent are not set out in the verdict.
Issue:
Had the claimant faced direct discrimination as defined under section 13 of the 2010 Act?
Reasoning of the Court:
The Employment Tribunal reached the conclusion that the claimant had been discriminated against. However, it held that section 13 had been infringed only by the deadnaming of the claimant from 2020 till 2022, and her removal from a number of matters that she had been working on. It was held that section 13 was infringed by a few other incidents as well. The Tribunal was not able to consider certain incidents due to the limitation period having run out with regards to those incidents. Damages were awarded to the claimant.
Conclusion:
The claim was partially allowed.

Mr. C. Borg-Neal v. Lloyds Banking Group PLC

Case Number: 2202667/22 (Employment Tribunal of London Central (CVP))

Mrs. M. Lynskey v. Direct Line Insurance Services Ltd.

Case Number: 1802204/2022 & 1802386/2022 (Employment Tribunal at Leeds)

Facts:
The claimant was a telesales consultant for the respondent. She was considered to be a very good motor sales consultant who knew how to say the right things to ensure a sale. The respondent introduced a new initiative called ‘Best for Customer’ (BFC) and this initiative involved re-training the salespersons of the respondent. However, during this time the claimant started suffering from brain fog and concentration difficulties among other things due to onset of menopause.
Her performance at work started suffering due to the effects of menopause. She was even offered a different post which it was considered was more suited to her at that point in time. She took up the offer and started. Later on, it was stated by her supervisors that her poor performance was an issue of confidence and she was also told that disciplinary action might be taken against her if she did not improve her performance. She was even denied a pay raise since her performance was marked “need for improvement”. Formal performance management proceedings were also started against the claimant because it was alleged that she was not able to understand her role and perform well in it.
A written warning was eventually issued to the claimant. She did not file an appeal against this warning and started the ‘success plan’ created by the respondent. During all this time she was consulting her doctor for treating the issues which she was facing due to menopause while simultaneously dealing with stress at home. She eventually had to go on sick leave because of her deteriorating health. Since the payment of sick pay was discretionary in nature, the respondent eventually stopped paying her sick pay due to payment being considered unsustainable for the company. She eventually resigned from her position due to the treatment that she had received over the past 29 months.
Issues:
1. Had the respondent discriminated against the claimant on the basis of her disability within the meaning of section 15 of the Equality Act, 2010?
2. Had the claimant been constructively and unfairly dismissed within the meaning of section 94 of the Employment Rights Act, 1996?
3. Had the respondent failed to make reasonable accommodations for the claimant and thereby failed in its duty to provide such accommodations under section 39(5) of the 1996 Act?
4. Had the respondent harassed the claimant on the basis of age and/or sex within the meaning of section 40 of the 1996 Act?
Reasoning of the Court:
The Tribunal held that it had been established on the basis of the facts that the respondent had discriminated against the claimant on the basis of her disability so as to trigger section 15 of the 2010 Act. It cited the removal of sick pay as a means to force the claimant to come to work as well as the view of the respondent that the treatment which the claimant was taking was not enough as providing the bases for its decision.
With regards to the second issue, the Tribunal held that the claimant had affirmed the contract after the last repudiatory beach on the 15th of September 2021, i.e. the day on which the decision regarding stoppage of sick leave was communicated, due to which she could not succeed on this issue. The Tribunal reached this conclusion since she had waited till the 3rd of May 2022 to resign while in the meantime while engaging with the respondent through internal dispute settlement mechanisms.
The claimant succeeded on the third issue since the Tribunal held that the respondent ought to have provided reasonable accommodations under section 39(5) such as setting lower targets for the claimant, giving her a role which did not involve her talking on a telephone etc.
The claimant failed on the fourth issue since the Tribunal held that the facts of the case were not such as to make out a case of harassment.
Lastly, the Tribunal considered the quantum of damages to which the claimant was entitled and awarded her suitable compensation.
Conclusion:
The appeal was partly allowed.

Starbucks Corporation

Case 19-CA-294579 and others (National Labour Relations Board)

Facts:
In 2021, the respondent’s employees started clamouring for Union representation. This led the respondent to carry out a full blown campaign against Unionisation which aimed at convincing employees that unionisation is not in their interest. This even led the respondent to provide wage and benefit increases to its entire hourly non-union workforce in August 2022.
The respondent attempted to create a narrative that the workers who were not in support of unionisation had been working along with its management in order to roll out the increases provided to the non-union workers. It started promoting “collaboration sessions” which were taking place between the management and these workers on its website as well as through other mediums. Allegedly, the workers of the respondent freely voted on the changes that I wanted to see regarding their working conditions during these sessions. Further, these sessions foreshadowed the benefits eventually provided by the respondent to its employees.
In May 2022, the respondent had also rolled out a programme called “Coffee Master” which provided its workers with training sessions as well as chances to visit coffee farms in Costa Rica. After this, a large campaigning blitz occurred with regards to the benefits which were to take effect from August 2022.
Arguments of the parties:
1. General Counsel of the NLRB:
It was argued that the actions of the respondent were such as to violate both section 8(a)(1) and 8(a)(3) of the National Labor Relations Board Act, 1935 (‘1935 Act’).
2. Respondent:
It was claimed that the messages put out by the respondent were protected by section 8(c) of the 1935 Act which protects non-coercive speech of employers which seeks to prevent unionisation. Further, it was argued that it was not the case that the respondent had disseminated anything within the meaning of section 8(a)(1). It was also claimed that section 8(a)(3) had not been violated since it had not been proven that the respondent had provided the increases in wages and benefits due to an anti-union motive.
It insisted that it could not provide increased benefits to union workers since doing so would open it up to accusations of making an unlawful unilateral change without bargaining with the union.
Issues:
1. Had the respondent carried out an unfair labour practice under section 8(a)(1) of the 1935 Act by making statements discouraging employees from unionising, i.e. from exercising their right to unionise under section 7?
2. Had the respondent carried out an unfair labour practice under section 8(a)(3) of the 1935 Act by discriminating between employees while granting increased wages and benefits to employees?
Reasoning of the Court:
The Board first dealt with the issue of whether section 8(a)(3) had been violated. Relying on its previous decision in Wright Line [251 NLRB 1083 (1980)], the Board held that the “elements required to support the government’s prima facie case are 30 union and or other protected activity by the employee, employer knowledge of that activity, and antiunion animus on the part of the employer.” It also referred to its decision in Shell Oil.
It held that an employer should provide benefits as if a union is not in the picture while union organization is underway. The argument regarding being accused of making an unlawful unilateral change was dismissed by the Board since it held that the respondent could have simply sought permission from the Union before making the change. It held that the conduct of the respondent was clearly hit by sections 8(a)(1) and 8(a)(3) of the 1935 Act. It also stated that the “wall of sound” approach used by the respondent was also a factor which made it give the above ruling.
To be more specific, the Court held that section 8(a)(1) had been triggered by claiming that the increased wages and benefits would only be given to non-union employees, by threatening the employees that they would suffer losses if they joined an union, and by soliciting complaints and grievances at non-union outlets thereby implying that the employees at such outlets would be granted better wages and benefits. It held that the actual grant of increased wages and benefits violated both section 8(a)(1) and (3).
The Board ordered the respondent to cease and desist from carrying out such unfair labour practices.
Conclusion:
The Board decided against the respondent.