This labour & employment law newsletter provides a brief summary of the developments and updates in the month of May & June, 2023 through judgments, notifications, circulars, and other updates in the labour & employment sector in India.
Principles to be followed while conducting a domestic enquiry against an employee
The High Court of Delhi held that the domestic enquiry conducted by the employer against an employee will be valid if the enquiry followed: (a) principles of natural justice (b) the conclusion arrived at by the employer is bonafide (c) there was no unfair labour practice or victimization of the workman (d) a prima facie case for discharge or dismissal is made out on the basis of the domestic enquiry. In the event, no defect is detected in the enquiry, the approval must follow from the Labour Court/Tribunal.
In case there is any defect in the enquiry, the Labour Court/Tribunal shall permit the parties to adduce their respective evidence before it. On appraisal of the evidence adduced by the parties, the Labour Court/Tribunal shall conclude whether the discharge or any other punishment including dismissal is justified.
[DTC vs. Karamvir Singh 2023/DHC/3173]
Employer not compulsorily required to terminate the employee for suppression of pendency of a criminal case against him
The Bombay High Court observed that the employer not to labour under the impression that employer has no choice but to terminate the employee in the matter where the employee suppressed criminal prosecution against him. The Court observed that the observations made by Hon’ble Supreme Court in Avtar Singh Vs. Union of India and others [(2016) 8 SCC 471] cannot be read or understood as laying down as an absolute proposition that the employer has no option but to terminate the employment, if the employee suppressed the pendency of a singular criminal prosecution.
[Buddheshwar S/o Babulal Lilhare vs. Maharashtra State Electricity Distribution Company and Ors. WP 4925 of 2019]
Termination order issued without giving an opportunity to the employee to defend against the accusations is untenable in law
The High Court of Delhi held that a departmental enquiry has to be conducted before terminating the services to provide a chance for the Petitioner to defend against the accusations. This would not only be violative of principles of natural justice but also has severe consequences for the employee since it gets printed and submitted with the stigmatic declaration made against him, marring his future prospects of employment.
[Nina Lath Gupta vs. Union Of India 2023/DHC/2944]
Period of daily wage is required to be taken into consideration while granting retiral benefits
The Rajasthan High Court while granting relief to a bus driver held that the services rendered by the petitioner as daily wages basis shall be taken into account while computing twenty years of qualifying service for the grant of the pensionary benefits to the petitioner. The Court also observed that by accepting the application for voluntary retirement of the petitioner, the respondents themselves admitted that the petitioner has completed qualifying service of twenty years.
[Bhagwan Singh v. State Of Rajasthan & Ors. 2023/RJJD/015418]
The workman is required to prove that the ex-employer has decided to fill up the vacancies in their setup in order to establish Section 25 H of the Industrial Disputes Act, 1947 (“I.D. Act”)
The High Court of Delhi recently examined the ambit of Section 25-H of the ID Act while relying upon the Apex Court’s judgment in the case of Management of the Barara Cooperative Marketing cum Processing Society Ltd v. Workman Pratap Singh 2019 (2) SCC 743. It was observed that The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employees over other persons by offering them reemployment in the services when the employer takes a decision to fill up the new vacancies.
It was held that in order to establish Section 25 H of the I.D. Act, the workman is required to prove that the ex-employer has decided to fill up the vacancies in their set up.
[Naresh Pal v. Food Corporation of India 2023/DHC/3507]
Three months as envisaged under Section 33C(2) of the I.D. Act is meant as a guiding factor for the learned Labour Court to expeditiously decide an application and not for the purpose of limitation
The High Court of Delhi held that the period of three months as envisaged under Section 33C(2) of the I.D. Act is prescribed not for filing of an application but for deciding of an application. The High Court further held that guiding factor for the learned Labour Court to expeditiously decide an application under Section 33C(2) of the I.D. Act. Therefore, an application filed under Section 33C(2) of the I.D. Act after the period of three months in not barred by limitation.
[Ircon International Limited v. Ashit Saha 2023/DHC/3480]
Denial of Maternity Leave violates fundamental rights
The Himachal Pradesh High Court has reiterated the position that every woman, irrespective of her employment status is entitled to maternity leave. The Court further held that denial of maternity leave would be detrimental not only to her health and safety but also to the child’s health, safety, and growth. The Court observed that maternity leave is a fundamental human right of every woman, which can not be denied. Therefore, denial of maternity leave is violative of Articles 29 and 39D of the Constitution of India.
[State of Himachal Pradesh vs. Sita Devi CWP No. 647 of 2020 - decided on 12.06.2023]
Skilled persons can be engaged for loading and unloading if special assistance is required [Kerala Headload Workers’ Act, 1978]
The Kerala High Court observed that proviso to Section 9A of the Kerala Headload Workers’ Act, 1978 make it clear that in respect of works which require the assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works can be done by an employer by engaging persons having such skill or by the machinery as the case may be. With respect to the case in hand, the court observed that the case of the petitioner that the Transformer in question is being unloaded using machinery. The transportation of machinery requires due diligence and it has to be done by the skilled workers. In view of the proviso to Section 9A, the petitioner has a right to get the work done by using machinery and skilled workers.
[M/S Jatan Constructions Pvt Ltd vs. Station House Officer 2023/KER/32990]
The usage of abusive language is not serious enough to impose a punishment of dismissal from service
Madras High Court held that The use of abusive words and showing a threat posture may not be construed to be grave in nature to impose a punishment of dismissal from service. The Court further observed that in this case, the words uttered by the Workman appear to be harsh and abusive, but, however, one cannot expect better words from a Group-III or IV employee and the punishment imposed for uttering abusive language may be disproportionate to the misconduct.
[S Raja vs. M/s.Hindustan Unilever Ltd and another W.A. 1835/2021 - decided on 25.05.2023]
Labour Department of Government of NCT of Delhi revised minimum wages under the Minimum Wages Act, 1948
The Government of NCT of Delhi vide an order dated 20.04.2023 revised the rates of minimum wages in respect of unskilled, semi-skilled and skilled categories with effect from 01.04.2023. Minimum wages for the unskilled, semi-skilled and skilled category is now Rs. 17234, Rs. 18993, and Rs. 20903 respectively.
While the rates for clerical and supervisory staff are Rs. 18,993 for non-matriculates, Rs. 20,903 for matriculates but not graduates, and Rs, 22,744 for graduates and above.
The order can be accessed here.
Delhi Government approved draft Delhi Occupational Safety, Health and Working Conditions Rules, 2023
The Government of NCT of Delhi has approved the draft Delhi Occupational Safety, Health and Working Conditions Rules, 2023 which will see some improvements in the working conditions of women working in the night shifts. As per the draft rules, women, if they choose to, can now work from 7 in the night to 6 in the morning. Further, for such women, employers will have to arrange for their transport from home to work and vice versa, it said. They are also required to make proper arrangements for toilets and drinking water, it added. For the safety of women, employers will be required to set up a contact number, mentioning it at the workplace as well as on the vehicle, for female workers to use in case of emergency.
The draft will be shared on the portal of the Labour Department, where the general public, institutions, and employers can submit their feedback to the government within thirty (30) days.
The news article can be accessed here.
The Haryana government allows consumption of alcohol at corporate offices
The Haryana government under clause 9.11A in its excise policy 2023-24 stated corporate having a minimum covered area of one lakh square feet in a single premises which may be self-owned/leased and having alteast 5000 employees shall be allowed the license in form L-10F for possession and consumption of low alcohol content drinks (i.e. RTB, Beer, Wine) by their employees on premises.
The excise policy 2023-24 of Haryana can be accessed here.
Labour Department of Government of NCT of Delhi issued notice inviting attention to file application for exemption under Delhi Shops & Establishments Act, 1954
The Government of NCT of Delhi vide its public notice dated 09.05.2023 invited attention to establishments registered under Delhi Shops & Establishments Act, 1954 and intending to file filing applications for exemption under section 14, 15 & 16 respectively.
The applications for exemptions are accepted only through the online mode via portal https://dlabourwelfareboard.delhi.gov.in/shopexemption/.
It was further advised that before making online application for exemption, the establishments are advised to match their online application for exemption data/information with respect to registration of Shops & Establishments data available in the portal www.labourcis.nic.in. If the information provided in the online exemption application does not match with the information available in the registration certificate, the application for exemption shall be kept in abeyance till request for updationin Form D /Fresh application is received from the establishments.
The public notice can be accessed here.
Rajasthan Government published The Rajasthan Platform Based Gig Workers (Registration & Welfare) Bill, 2023
Rajasthan State Legislature enacted The Rajasthan Platform Based Gig Workers (Registration & Welfare) Bill, 2023 (“Bill”) for platform-based gig workers. With an estimated eight million people employed in an industry built on the back of the smartphone revolution, “gig” work has become a major source of jobs for youth in India. The Bill has been drafted to constitute a Welfare Board and to set up a welfare fund for platform-based gig workers, to register platform-based gig workers, aggregators, and primary employers in the State; and to facilitate guarantee of social security to platform-based gig workers and to provide for matters connected therewith or incidental thereto.
The Bill has been drafted taking into consideration online gig work such as ride-sharing services, food & grocery delivery services, logistic services, healthcare, etc.
The Bill can be accessed here.
This newsletter was authored by Kushank Sindhu (Counsel), Anmol Singh (Associate Counsel), Apali Kaushal (Associate Counsel) and Sanya Singh (Associate Counsel) . The authors may be contacted at office@sigmachambers.in.
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