This labour & employment law newsletter provides a brief summary of the developments and updates in the month of April, 2023 through judgments, notifications, circulars, and other updates in the labour & employment sector in India.
Workers should furnish their own permanent address instead of Union’s in Labour cases
The Supreme Court of India held that in all cases to be filed as well as those pending, parties to the dispute are required to furnish their own permanent addresses. The Supreme Court further held that even if the representative of the workman is appearing, he shall furnish the permanent address of the workman as well and merely mentioning through Labour Union or authorised representatives, who are sometimes union leaders or legal practitioners, will not be sufficient. Service of notice of workman will have to be effected on the permanent address of the workman.
[M/s. Creative Garments Ltd. vs. Kashiram Verma, Civil Appeal No. 5758 of 2012; 16.03.2023]
Termination of service of the workman as a result of non-renewal of the employment contract does not amount to retrenchment
The High Court of Delhi, making a reference to Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (“I.D. Act”) held that if the workman is engaged for a specified period of time and his services were terminated after the said period, the said termination cannot be termed as retrenchment. The High Court of Delhi relied upon its earlier decision in the case of ‘Smt. Santosh Devi vs. Guru Teg Bahadur Hospital, Shahdara, Delhi’, W.P.(C) 13869/2004, which was decided on 20.09.2022.
[Gomati vs. G.T.B. Hospital 2023/DHC/2016]
Proceedings under Section 17-B of the I.D. Act are independent proceedings in nature and not dependent upon the final order passed in the main proceedings
The High Court of Delhi held that the proceedings under Section 17-B of the I.D. Act i.e., payment of full wages to workmen pending proceedings in higher Courts, are independent in nature and are not dependent upon the final order passed in the main proceedings.
The High Court of Delhi, in this case, even after deciding the case in favour of management by stating that the workman is not entitled for reinstatement in service or back wages, held that the payment already made by the management to the workman under Section 17-B of the I.D. Act is not recoverable.
[Haryana Roadways v. Yunus Khan 2023/DHC/2015]
Proceedings under Section 33(2)(b) and Section 10 of the Industrial Disputes Act, 1947 (“I.D. Act”) are distinct proceedings, having distinct purposes.
The High Court of Delhi held that the proceedings under Section 33(2)(b) and Section 10 of I.D. Act are distinct proceedings, having distinct purposes. The Court relied upon the Hon’ble Supreme Court's judgment in John D’ Souza vs. Karnataka State Road Transport Corporation (2019) 18 SCC 47, wherein it was categorically held that the enquiry envisaged under Section 33 (2) (b) of the I.D. Act is a limited enquiry and is in the nature of summary proceedings. It was further observed by the Court that the proceedings under Section 33(2) (b) of the I.D. Act will not act as res judicata for the proceedings under Section 10 of the I.D. Act.
[Yad Ram Conductor vs. DTC 2023/DHC/2765]
Questions for considering an application under Section 33(2)(b) of the I.D. Act
The High Court of Delhi, held that while discharging or punishing the workman for misconduct under Section 33(2)(b) of the I.D. Act, the following questions are necessary to be examined:
(i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders conducted/ whether principles of natural justice has been complied with;
(ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;
(iii)whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee;
(iv) whether the employer has paid or offered to pay wages for one month to the employee and;
(v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.
[Delhi Transport Corporation vs. The P.O., Yad Ram 2023/DHC/2764]
Labour Courts can re-appreciate the evidence
The High Court of Delhi held that while exercising power under Section 11A of the I.D. Act, the satisfaction of the Labour Court regarding the alleged misconduct is important and the Labour Court can re-appreciate the evidence and substitute its own views
[DTC vs. Baleshwar 2023/DHC/2627]
Tamil Nadu Government introduced Tamil Nadu Shops and Establishments (Amendment) Bill, 2023 (“Bill”)
Tamil Nadu introduced a bill to amend Tamil Nadu Shops and Establishments Act, 1947 by inserting Sections 22B to 22E. The Bill was introduced in the Tamil Nadu Legislative Assembly on April 13, 2023.
The Bill incorporates certain provisions of the Model Shops and Establishments (Regulation of Employment and Conditions of Service) Bill, 2016 which was approved by the Union Ministry of Labour and Employment.
The Bill requires employers to ensure the following additional facilities: (i) adequate supply of drinking water, (ii) adequate number of latrines and urinals accessible during all working hours, (iii) restroom and a lunch room that has drinking water, proper ventilation, and chairs/benches with backrests, and (iv) prescribed first aid facilities.
The Bill can be accessed here.
This newsletter was authored by Kushank Sindhu (Counsel), Anmol Singh (Associate Counsel) & Gazal Ghai (Associate Counsel). The authors may be contacted at office@sigmachambers.in.
DISCLAIMER. THIS CONTENT HAS BEEN PREPARED FOR INFORMATIONAL PURPOSES ALONE AND IS NOT A SUBSTITUTE FOR LEGAL ADVICE. PLEASE OBTAIN LEGAL ADVICE PRIOR TO ACTING ON OR RELYING ON THE CONTENTS OF THIS PAGE.