Award Digest

Awards Digest: Journal of Labour Legislation
[Vol. XXXXI-1-4, January-April, 2015]
CONTENTS
Page No.
1.
Regulatory Framework for Private Placement Agencies in India

Ellina Samantroy
2.
Decisions of the Supreme Court
14
2.1
Mohan Lal v High Court of Jammu & Kashmir, 2014 Lab IC 3611 (SC)
14
2.2
Nand Kumar v State of Bihar, 2014 Lab IC 4088 (SC)
15
2.3
Ved Prakash Tiwari v U.P. Co-operative Institutional Service Board,

Lucknow & ors, 2014 Lab IC 4095 (SC)
17
2.4
Life Insurance Corporation of India and ors v S. Vasanthi, 2014 Lab IC

4152 (SC)
18
2.5
State of Bihar and ors v Chandreshwar Pathak, 2014 Lab IC 4167 (SC)
20
2.6
Raghubir Singh v General Manager, Haryana Roadways, Hissar, 2014 Lab

IC 4266 (SC)
22
2.7
Tapash Kumar Paul v BSNL & another, 2014 Lab IC 4486 (SC)
24
3.
Decisions of the High Courts
26
3.1
KMPG India Pvt Ltd v National Commission for Women, New Delhi, 2014
Lab IC 4311 (Bom-DB)
26
3.2
Chief Executive Officer v Chandrika Bai, 2014 Lab IC 3697 (Chh)
28
3.3
P. V. Kumar v Central Industrial Security Force & another, 2014 Lab IC

4323 (Guj-DB)
30
3.4
High Court of Gujarat v State of Gujarat, 2014 Lab IC 4441 (Guj-DB)
31
3.5
The UCO Bank and Ors v L.R. S. Murthy, 2014 Lab IC 3635 (Hyd-DB)
33
3.6
Lime Kilns and Saw Mills Workers Union & anr v State of A.P. & ors, 2014
Lab IC 4409 (Hyd-DB)
34
(i)
3.7
Abhijeet Hazaribagh Toll Road Ltd v Union of India & ors, 2014 Lab IC
4115 (Jhar -DB)
35
3.8
I. Jackuline Mary v Superintendent of Police, Karur, 2014 Lab IC 3875

(Mad)
37
3.9
M/s. United India Insurance Co. Ltd., Dharapuram v Tmt. Pushpathal &
others, 2014 Lab IC 4465
40
3.10 D. Ramkumar v Pondicherry Society for Higher Education & ors, 2014 Lab
IC 4475
41
3.11
42
State of Madhya Pradesh & ors v B.P. Garg, 2014 Lab IC 4491 (MP-DB).
3.12 State of Tripura and others v Shyam Datta & another, 2014 Lab IC 3932
(Tripura)
44
3.13 Pramod Kumar Sharma v State of Uttrakhand & ors, 2014 Lab IC 4216
(UK)
45
(ii)
SUBJECT INDEX
Public Interest Litigations on service matters?
(i) Public Interest Litigation on service matters cannot be entertained.
(ii) The courts should filter out the frivolous petitions and dismiss them with cost to discourage
petitions filed with oblique motives.
(iii) Exemplary costs should be imposed on failure to explain the possession of official documents
annexed with the PILs.
Supreme Court14
Regularization of daily wagers
Legitimate expectation of getting regularized
(i) Appointment on daily wage basis is not an appointment to a post according to the rules.
Usually, the projects in which daily wagers were engaged, having come to an end, their
appointment is necessarily terminated for want of work.
(ii) The status and right of a daily wager of a Government concern are not equivalent to that of
a Government servant and his claim to permanency has to be adjudged differently.
(iii) A person appointed on daily wages or on contract is aware of the consequences of
appointment being temporary, hence cannot invoke the theory of legitimate expectation for
being confirmed in the post.
Supreme Court15
Disciplinary proceedings after retirement
Disciplinary proceedings cannot be initiated or continued after retirement of an employee in the
absence of relevant rule. Enquiry in such cases shall lapse on retirement.
Supreme Court17
Judicial review of penalty imposed
(i) The quantum of punishment to be imposed in cases of proved misconduct is essentially the
domain of the departmental authorities.
(ii) Where penalty is set aside being shockingly disproportionate, Courts should remit the
matter back to the disciplinary authority or the appellate authority with direction to pass
appropriate order of penalty rather substituting or modifying the penalty.
Supreme Court18
Public appointments & backdoor entry.
(i) The appointment made in the absence of any advertisement or selection process, are not
protected and can validly be terminated even after rendering any length of service.
(ii) For making public appointment, the advertisement should be inserted along with calling
names from employment exchange
(iii) person can be appointed even on a temporary or adhoc basis without inviting applications
from all eligible candidates.
Supreme Court20
Industrial Disputes Act, 1947. Sec. 10(1). The Limitation Act does not apply in case of raising of
an industrial dispute; and the appropriate Government may make reference of any industrial
dispute at any time.
(iii)
Granting of back wages. The reinstatement of an employee, on the finding of a competent

judicial/quasi-judicial body or Court that the action taken by the employer was ultra vires the
relevant statutory provisions or the principles of natural justice, should be with full wages; or
the employer should prove that the employee was gainfully employed during the intervening
period.
Denial of back-wages to an employee, who has suffered due to an illegal act of the employer would
amount to indirectly punishing the concerned employee and rewarding employer by relieving
him of the obligation to pay back-wages including emoluments
Supreme Court22
Industrial Disputes Act, 1947. Sec. 25 F. Reinstatement in cases of illegal retrenchment.
(1) Where retrenchment was found illegal, re-instatement with back wages was not the natural
consequence. Compensation could be awarded in lieu of reinstatement and also backwages.
(2) Re-instatement may be denied in exceptional circumstances like where industry is closed or is
in severe financial doldrum or workmen concerned has secured better or other employment
elsewhere etc.
Supreme Court24
National Commission for Women Act, 1990
National Commission of Women is not a Court. It is not entitled to arrive at final conclusions
or grant reliefs that a civil or criminal Court can. The Act does not envisage enforcement of the
commissions directions.
It can investigate the matter and can only recommend the remedial measures. It can not determine
the rights of respective parties.
The commission has no jurisdiction to determine issues of unfair dismissal or whether such
dismissal has caused loss of future opportunity or demand a letter of apology, or direct payment
of compensation, or grant relief by way of ordering payment of bonus.
Bombay High Court26
Employees Compensation Act, 1923 v. Mahatma Gandhi National Rural Employment Guarantee
Act, 2005
Employees working under MGNREGA were not covered under the provisions of Employees
Compensation Act, 1923; but were entitled to ex-gratia payment of Rs. 25000/- u/s 5 of MGNREGA
in the event of death or permanent disablement during and course of employment.
Chhattisgarh High Court28
Disciplinary proceedings:
Revisionary Authority has the powers to suo moto take cognizance of penalty and after giving
notice to the charged officer, may confirm or modify the order of penalty within six months of
communication of order of penalty.
Gujarat High Court30
Review of judicial orders.
The power of review can be exercised for correction of a mistake but not to substitute a view or
discovery of new and important matter or evidence which, after the exercise of due diligence, was
not within knowledge of the petitioner or could not be produced by him.
(iv)
Jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is
an error apparent on the face of the record
Gujarat High Court31
Disciplinary proceedings: Reasonable opportunity to defend
(i) Not allowing defence witnesses is violation of principles of natural justice.
(ii) If departmental/listed witnesses are not at the mercy of IO, then the defence witnesses
also cannot be at the mercy of IO, as the same will be disadvantageous to the charged
officer. Rules only put an obligation on an employee to give relevance of witnesses to avoid
indiscriminate naming of defence witnesses and give no authority to IO to adjudicate on the
relevance of witnesses.
Hyderabad High Court33
Industrial Disputes Act, 1947. Sec. 25 (o). Closure.
A subsidiary industry is an independent unit and it has the right to apply for closure of its
industry.
The concept of principal and subsidiary employer is limited to the extent of enabling the aggrieved
workmen to recover their wages or to enforce their rights but they cannot insist that the principal
industry should be made a party.
Hyderabad High Court34
Building and Other Construction Workers Welfare Cess Act, 1996
(i) Constitutional validity. The Parliament had the authority to pass said Act under Entry 97 of
List I (Union List). Use of construction material under cost of construction does not bring
it under Entry 54 or 66 of List II.
(ii) Cess vis--vis Tax. The Cess does not become a part of consolidated fund and was not
subject to appropriation by legislature. It is credited into a special fund earmarked for
carrying out the purposes of the Act under which it is collected. Cess has character of a fee
as distinct from a tax.
(iii) Rule 3 of the BOCWW Cess Rules was not ultra vires the BOCWW Cess Act and Article 246
of the Constitution of India and levy of cess @ 1% on the cost of construction was neither
arbitrary nor excessive.
Jharkhand High Court35
Transgender Freedom to choose sexual identity.
Constitution of India, Article 14 15, 16, 19(1) (a) and 21
(i) In Constitutional frame work, law and jurisprudence, there are only two sexes i.e. Male or
Female; and there is no law in place to recognize transsexual or third sex or transgenders.
(ii) A transsexual has the right to select his/her sex; forcing him/her to accept the identity of a
transsexual will surely be an infringement of the rights guaranteed under Articles 14, 15, 16,
19(1)(a) and 21 of the Constitution of India.
(iv) Services of a transgender woman constable cannot be terminated on the ground that she
revealed her sex as female; specially when she was born and she also identified her as
female throughout her life.
Madras High Court37
(v)
Employees Compensation Act, 1923 v. Motor Vehicles Act, 1988

(i) The defences which are available to an insurer under the Motor Vehicles Act, 1988 cannot
be raised in proceedings under Workmens (Employees) Compensation Act, 1923 as
proceedings under both Acts are different except specifically permitted.
(ii) The insurance companies should not mechanically blame the Tribunals/ Workmen
Compensation Commissioner on issues settled by the Apex Court. Cost of Rs. 10,000/imposed in addition to compensation.
Madras High Court40
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995
(i) Human right of Persons with Disabilities. A Welfare State is bound to protect the welfare
of physically challenged persons under Disabilities Act, as they got disability by birth or by
some accident.
(ii) The request from persons with disabilities for choice of place of posting be considered and
to the extent feasible, they may be retained in the job, where their service could be optimally
utilized.
Madras High Court41
Disciplinary proceedings: Reasons for recording findings.
(i) An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It
cannot be ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that
conclusion is supported by reasons.
(ii) If a finding of guilt recorded in departmental enquiry by the Enquiry Officer is based on no
evidence or is based on such material which cannot be legally accepted as proper evidence,
then such a finding is perverse and Courts can intervene.
MP High Court42
Employees Compensation Act, 1923.
Manufacturing process. A cook engaged on daily wages for making food in kitchen of boys hostel
of school was entitled to employees compensation as cooking of food comes within the definition
of manufacturing process.
Workman. If a manufacturing process (cooking of food) takes place in the hostel of school, a
person working in that portion of the school would be a workman
Tripura High Court44
U.P. Industrial Disputes Act, 1947.
Back wages. Where an awards is passed for reinstatement with back wages, the term back
wages does not include Bonus, unless the same is specifically stated in the award.
Uttrakhand High Court45
(vi)
REGULATORY FRAMEWORK FOR PRIVATE

PLACEMENT AGENCIES IN INDIA
Ellina Samantroy*
1 Introduction
The changes in world of work in recent years have brought new sets of challenges to economies
and labour market. With the shifts in the nature of work, the demand for the workforce has also seen
fluctuations. Globalization, changing market trends, unpredictability and the demographic evolution
has contributed to new attitudes towards work. Adapting labour markets to these dynamics is one of
the challenges that the developing countries are facing. Within these developments, the expansion of
productive employment opportunities to people and the role of labour market intermediaries assume
crucial importance. With the flexibility of labour market and changing nature of work there has been
tremendous growth of Private Employment Agencies and it is believed that these agencies would
contribute positively in addressing the global employment challenge to a large extent. Economic
liberalism and international competition led to increasing acceptance of the role that private employment
agencies could play in improving the functioning of the labour market. Their spectacular growth since
then has been linked to the need to provide services to a rapidly developing and increasingly flexible
labour market. With these developments there were also subsequent formulations of international
labour standards by the International Labour Organization through the Private Employment Agencies
Convention 1997 (No. 181). The purpose of this Convention is to allow the operation of private
employment agencies as well as to protect the workers using their services.
Article 1 of Convention No. 181 defines Private Placement Agencies (PPAs) as any enterprise or
person, independent of the public authorities, which provides one or more of the following labour
market services: (a) services for matching offers of and applications for employment; (b) services
for employing workers with a view to making them available to a third party (user enterprise);
or (c) other services relating to job seeking, such as the provision of information, that do not aim to
match specific employment offers and applications. So they are generally considered as enterprises
that employ workers to make them available to a third party that assign and supervise their tasks.
The growing trend of private employment agencies throughout the world has raised a concern over a
risk of labour market segmentation with an undesirable gap in working conditions of permanent and
temporary employees, particularly in terms of wages and working rights. Such a situation has led to a
plethora of academic debates on the dynamic relationship between labour market performances and
employment protection. Public opinion and policy makers have stressed the importance of finding
an appropriate balance between flexibility and security. (European Commission, 2003). There are
various theoretical positions which explain the relevance of temporary jobs. Some arguments claim
that more able workers may use temporary jobs to signal their skills by making themselves available
for screening. Some believe that temporary jobs may provide an occasion to acquire additional human
Dr. Ellina Samantroy is an Associate Fellow at the V.V. Giri National Labour Institute, Noida Email:ellinasamantroy@gmail.com
AWARDS DIGEST: Journal of Labour Legislation [Vol. XXXXI-1-4]
capital, social contacts and information about vacancies. (Ichino et al,2008).Inspite of the plethora
of opportunities provided by the private employment agencies, there are instances of exploitation
of job-seekers by profit seeking employment agencies which then represents a trap of endless
precariousness as rightly pointed out by Ichino et al. At present, India does not have a regulatory
framework for regulation of placement agencies which has led to malpractices and questioning their
potential of providing employment opportunities to the burgeoning youth population in India.
In this context, the present paper tries to understand the existing regulatory framework for India that
has provisions for regulation of PPAs and also legislations that regulate the labour market. The paper
tries to examine the alignment of existing labour legislations with Convention 181and tries to explore
the gaps in these regulations. For the purpose of the paper the term PPAs is used instead of employment
agencies since the latter has larger scope whereas the paper addresses issues related to unregulated
small and medium placement agencies that do not comply with existing labour legislations.
2
Private Employment Agencies Convention 1997 (No. 181)
The Convention No.181 concerning PPAs was adopted by the General Conference of the
International labour Organisation in its 85th Session on 3rd June 1997. It replaces the Fee charging
Employment Agencies Convention 1949 as a follow up to the decision of International Labour
Conference at its 81st session, 1994 to revise the Fee-charging Employment Agencies Convention
(revised) 1949. Convention 181 replaces the Fee-Charging Employment Agencies Convention of
1949 (No. 96), effectively abandoning the ILOs restrictive or prohibitive policy towards private
employment agencies and encouraging the effective operation of services provided by private
employment agencies, and especially temporary work agencies.
Following these developments and debate on this among governments, employers and trade unions
in the 1990s, the ILOs tripartite constituents in the International Labour Conference voted for
Convention No. 181, which aims to allow the operation of private employment agencies as well
as the protection of the workers using their services (Article 2). Employers acknowledged that it
represented major progress over the Fee- Charging Employment Agencies Convention (Revised),
1949 (No. 96), and that recognition of private employment agencies role could not be obtained
without regulation, such as licensing, certification, prohibition of charging fees to workers (apart from
certain exceptions), and establishing respective responsibilities of employment agencies and user
enterprises regarding agency work. Worker delegates at the 85th Session (1997) of the International
Labour Conference tried to overcome their initial opposition to private employment agencies and
supported the proposed Convention because it offered protection to temporary and migrant workers
and an opportunity to reduce unfair competition from unregulated recruitment agents frequently
associated with malpractice and abuse (ILO, 2011)1 Convention came into force in May 2000 and
presently 25 countries have ratified the Convention and India has not ratified the Convention yet.2
1
For details on background of the Convention see Private Employment Agencies, Temporary Agency Workers and their
Contribution to Labour Market, Issues paper for discussion at the Workshop to promote ratification of the Private Employment
Agencies Convention, 1997 (No. 181) (2021 October 2009),Geneva 2009,International Labour Organization 2011
Albania, Algeria, Belgium, Bosnia and Herzegovina, Bulgaria, Czech Republic, Ethiopia, Finland, Georgia, Hungary,
Italy, Japan, Lithuania, Republic of Moldova,Morocco, Netherlands, Panama, Poland, Portugal, Slovakia, Spain,
Suriname, Uruguay, Israel, Yugoslavia
V.V. Giri National Labour Institute
The Convention recognizes the positive role of private employment agencies and their contribution
to the labour market. It also sets general parameters for the regulation, placement and employment
of workers recruited by PPAs and in particular, temporary work agencies. At the same time, the
Convention promotes cooperation between the Public Employment Services (PES) and Private
Employment Agencies (PrEAs) to ensure the most efficient functioning of the labour market,
with the PES still maintaining the authority in formulating labour market policies.3 The Private
Employment Agencies Recommendation No. 188 relates to Convention No. 181 and specifies
provisions for this cooperation and also provides guidelines to national legislators in drafting legal
frameworks in line with Convention.4 Convention No. 181 is designed to balance enterprises need
for flexibility to expand or reduce their workforce with workers need for employment stability,
a safe work environment, decent working conditions and a safety net when they are unable to
work. Good practice in regulation and effective national legislation includes clearly defining the
term private employment agency, determining basic requirements for the legitimate operation of
agencies, and ensuring governments capacity to enforce such provisions. It sets general parameters
for the regulation, placement and employment of workers by these agencies, and assists member
States to establish clear policies, legislation and mechanisms for effective registration and licensing
of agencies, thereby helping them play a constructive role in contributing to labour markets free
from exploitative conditions.5
3. Private Placement Agencies in India
There are different types of PPAs working in India catering to various labour market needs. Some
of the placement agencies providing services to some specific sectors are regulated through
various legislations. But there are numerous PPAs providing diverse job opportunities which
are not covered under any legislation. However, for the purpose of the present paper and on the
basis of their regulation/coverage such agencies can be broadly classified into the following four
categories:
i) Manpower Export and Placement Agencies- These are covered under Emigration Act, 1983 ii)
Labour Contractors-These are covered under Contract (Abolition & Regulation) Act, 1970 and the
Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
iii) Private Securities Agencies Governed by Private Security Agencies (Regulation) Act, 2005
iv) PPAs catering to specific needs of the employer/ labour market mainly operating for domestic
needs and not covered by any specific Act Some States/UTs register them under their Shop &
Establishment Act6 .For the present paper, the term PPAs is used to understand placement agencies
which are providing services to the third party.
See Guide to Private Employment Agencies:Regulation,Monitoring and Enforcement ,2007,International Labour Organisation.
3
4
For details on Recommendation see annexure on Private Employment Agencies Recommendation No. 188
See Private employment agencies, promotion of decent work and improving the functioning of labour markets in private
services sectors; Issues paper for discussion at the Global Dialogue Forum on the Role of Private Employment Agencies
in Promoting Decent Work and Improving the Functioning of Labour Markets in Private Services Sectors (1819 October
2011:International Labour Office Geneva.
Such classifications were made after series of discussions and meetings in the Ministry of Labour and Employment regarding
ILO Convention 181 and later on formulated by DGE&T,GOI
4 Regulating Employment Agencies: A Cross Country Perspective

The formulation of international labour standards like ILO Convention 181 led to a movement
towards regulation of PPAs in various countries throughout the world though initially there were
many restrictions for its suppression. By 1926 Finland, Romania and Bulgaria had provided for
complete abolition of private employment agencies .But between 1910 and 1930 there seemed to
emerge a general consensus among the nations dealing with private employment agency industry
that this industry should be strictly controlled, if not entirely prohibited. (Martinez 1976).However,
there were diverse viewpoints on the operation of these employment agencies like complaints about
the irregularities and illegal mechanisms followed by the agencies to operate in the market. Some
other viewpoints report of illegal fee charging by such agencies which remain largely unregulated
and at times encouraged unemployment within the labour market.
A reaction from a Labour Department agent in Washington in a Certificate Program as quoted by
Thomas Martinez is as follows:
The complaint against the private office is almost universal. The experience of this office is that
private agencies charge all that the traffic will bear and that in hard times, when work is scarce and
the worker poverty-sticken, the fee is placed so high as to be almost prohibitive, and the agencies
take longer chances, sometimes sending men on only a rumor, depending on their financial straits
to make it impossible to return. (1976)
Such practices were regarded as highly exploitative in nature and also devices to restrict labour
mobility in times of serious unemployment. The need for regulation was enhanced not only by the
profound effect of these agencies upon the labour market and the economy in general but also by the
very nature of the business, which provided a very fertile ground for unscrupulous business practices
(Martinez 1976). During 1970s such agencies were discouraged and the funding for such agencies
was discontinued. With the onset of liberalization and globalization, these private employment
agencies were seen as contributing a lot towards effective functioning of the labour markets.
Though, this industry has received widespread acclamation in many European countries for its
overwhelming contribution to labour markets, its role is not recognized in India. With regard to
legislative initiatives undertaken by countries across the world, the European Union has been
playing a prominent role. Mostly the member countries of the European Union have the highest
number of ratification of the ILO Convention 181. The Eurociett (European Confederation of
Private Employment Agency) has been a highly regulated platform for promoting common interests
of agency work industry in Europe. According to a recent report by CIETT7 agency work had
evolved gradually in many countries across the globe. South Africa, USA and Australia showed a
gradual increase in agency work in the past years. The data calculated for India in 2011 shows 0.3
% increase in agency work (CIETT, 2013).

CIETT is the International Confederation of Private Employment Services founded in 1967 Ciett consists of 48 national
federations of private employment agencies.Details can be found at http://www.ciett.org/index.php?id=121
5 Existing Regulatory Framework in India

There are many existing labour legislations in India which are in line with most of the provisions of
Convention 181 but they cater to specific agencies dealing with contract labour, migrant workers,
private security agencies, shops and establishments etc. With regard to regulation of PPAs recruiting
domestic workers, the Delhi Government passed a Draft Bill , Delhi Private Placement Agencies
(Regulation) Bill 2012 which is pending. The Bill is still in the midst of various criticisms in terms
of its applicability to domestic migrant workers and having no welfare mechanism and stipulation
of minimum wages for domestic workers. Child rights groups allege that the draft of the Delhi
Private Placement Agencies (Regulation) Bill, 2012 has only focused on the regularization of
placement agencies rather than stressing on solving the issue of trafficking of women and minors
(Deccan Herald 2012).
However, there has not been any legislation on PPAs that covers the placement industry as a
whole.The question of bringing a legislation to regulate PPAs not covered under any of the above
categories has been considered at various foras.
With regard to Convention 181 concerning PPAs, India has not been able to ratify the convention
so far due to many reasons. Some of the oft quoted reasons are the peculiar labour market situation
in the country with large unorganised sector, lack of reliable data on the existence of these agencies
and various existing laws concerning some of these agencies which are not in tune with Convention
181. Against this backdrop, there is a need to understand the existing legal provisions in the country
and their compliance with Convention 181. It is also important to address the various loopholes in
our legal provisions and explore the possibility of formulation of a legislation to regulate the PPAs
in line with Convention 181.
5.1 The Delhi Shops and Establishment Act 1954
The Shops and Establishment Act is a State legislation and each state has framed its own rules for the
Act. An Act to amend and consolidate the law relating to the regulation of hours of work, payment
of wages, leave,holidays, terms of service and other conditions of work of persons employed
in shops, commercial establishments, establishments for public entertainment or amusement and
other establishments and to provide for certain matters connected therewith. This Act is applicable
to all persons employed in an establishment with or without wages, except the members of the
employers family. The provisions of the Act apply to the shops and establishments located in Delhi
and not to any establishment working outside Delhi under the authority of Chief Inspector. The Act
in its Section 5 provides for registration of shops or establishments8.The Act also confers special
power on inspectors who would be responsible to collect information on closure and opening of
any commercial units. Such provisions are in line with ILO convention 181. The Act does not have
any provision on fee charging from employees so the placement agencies registered under the Act
have no regulations on fee charging.Since there is no provision on licensing and cancellation of
8
As mentioned in the Delhi Shops and Establishment Act 1954
license when found guilty of any irregular practice, the scope for exploitation increases. Therefore,
there is a need for more stringent regulation mechanism since the placement agencies registered
under this Act as establishments have scope to exploit jobseekers.
5.2 Employment Exchanges (Compulsory Notification of Vacancies Act) 1959
The Employment Exchanges (Compulsory Notification of Vacancies Act) 1959 regulates the
notification of vacancies in India. Under the Act, in any State or area, the employer in every
establishment in public sector and in the private sector in that State or area shall notify compulsorily
about vacancies to employment exchanges.
Section 4, sub section 2 of the Act states that the appropriate government may, by notification in
the official gazette, require that from such date as may be specified in the notification, the employer
in every establishment in private sector or every establishment pertaining to any class or category
of establishments in private sector shall, before filling up any vacancy in any employment in that
establishment, notify that vacancy to such employment exchanges and the particulars as may be
prescribed, and the employer shall thereupon comply with such requisition.
Section 5 of the Act also makes it obligatory for the employers to furnish information and returns
in prescribed form. But a question which arises here is how far the employers have adhered to the
provisions of the Act. Even the regulatory mechanism of the Act is not very stringent. Section 7 of
the Act regarding penalties states that if any employer fails to notify to the employment exchanges
prescribed for the purpose any vacancy in contravention to sub-section (1) or sub-section (2) of
section 49, he shall be punishable for the first offence with fine which may extend to five hundred
rupees and for every subsequent offence with fine which may extend to one thousand rupees.
The Act has many loopholes with regard to its regulation as the penalty mentioned for non compliance
is quite low which leaves room for many employers for non compliance. Employers generally
consider the services provided by the employment exchanges as being far from satisfactory. The
candidates supplied by the employment exchanges are often not of the standard expected by them.
There are delays in submitting the names of candidates to employers and the approach adopted
is not business like. Section (iv) of the CNV Act gives the option to employers to fill up notified
vacancies from the open market .The private sector invokes this provision and frequently meets
its manpower requirements from the open market. Penalties fixed for non-compliance with the
provisions of the Act are not so stringent. As pointed out by Chandra et al Severe penalties may
have deterred employers from committing violations, such as not sending their returns on time
or not responding at all. For example Rs 500 is the amount of penalty for not responding to EMI
returns (Chandra et al, 2006).
Against this backdrop it may be argued that the purview of the Act needs to be expanded to PPAs
so that the irregularities in advertisements are curbed. Moreover, the Act needs to be amended
with the current labour market requirements and the nature of advertisements to be made. Since
9
Subsection 1 and sub section 2 of section 4 are regarding notification of vacancies to employment exchanges.
the candidates provided by the employment exchanges do not match the skill requirements of
PPAs they often do not comply with the Act. The procedure of notification needs to be re worked
in consultation with various stakeholders.
5.3 The Contract Labour (Regulation and Abolition) Act 1970
The Act applies to establishments or contractors employing twenty or workmen on any day of
the preceeding twelve months as contract labour. The Act has many provisions which overlap
with ILO Convention 181. According to Article 1(b) of the Convention services consisting of
employing workers with a view to making them available to a third party, who may be natural or
legal person(referred to as user enterprise )which assigns their tasks and supervises the execution
of these tasks. Such a definition is in line with Paragraph 2 (b) of the Contract Labour Act which
says: a workman shall be deemed to be employed as contract labour in or in connection with
the work of an establishment when he is hired in or in connection with such work by or through
a contractor, with or without the knowledge of the principal employer. The other provisions
with regard to registration, licensing and social protection covered under the Act are in line with
Convention 181.10
Section 10 of the Act
Notwithstanding anything contained in this act, the appropriate government (central or state as
the case may be) after consultation with the appropriate board (central or state as the case may
be) can prohibit the employment of contract labour in any process, operation or other work in any
establishment by notification in the Official Gazette.
But , this section has been subsequently amended by various State governments .For instance
the government of Maharashtra and Andhra Pradesh have amended the provisions of this
section.In this context, it can be argued that the provisions of the Act needs to be redefined in
accordance with the changing trends of the labour market and the world of work. The process
of globalization has led to creation of new forms of employment like temporary work and flexiwork etc whose relevance cannot be undermined in employment generation for the unemployed.
Such a situation demands the role and responsibilities of the employers hiring contract labour
to be re-defined.
5.4 T
he Inter-state Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979
This is an Act to regulate the employment of Inter-State migrant workmen and to provide for their
conditions of service and for matters connected therewith. There are provisions on registration of
establishments under the guidance of a registering officer appointed by the Government. Under
this Act, no principal employer of an establishment to which the Act applies shall employ interstate migrant workmen in the establishment unless a certificate of registration in respect to such
As mentioned in Contract Labour (Regulation and Abolition )Act 1970
10
establishment is issued. The Act also has provisions for licensing of contractors through licensing
officers appointed by the government.
Subject to the provisions of the act, a license may contain such conditions including in particular,
terms and conditions of the agreement or other arrangement under which the workman will be
recruited, the remuneration payable, hours of work, fixation of wages and other essential amenities
in respect to inter-state migrant workmen, as the appropriate Government may deem fit to impose
in accordance with the rules, if any under Sec 35and shall be issued on payment of such fees as
prescribed.11
These regulatory provisions are very much in accordance with Article 3 of the convention 181
which mentions about a system of licensing of certification for the employment agencies. Article
3, Paragraph 2 of the Convention says:
A member shall determine the conditions governing the operation of private employment agencies
in accordance with a system of licensing or certification, except where they are otherwise regulated
or determined by appropriate national law and practice. 12
The Inter-State Migrant workmen Act is quite comprehensive as it has got enough provisions for
social protection and social security of workers .The Act prescribes for the fixation of Minimum
wages under Minimum wages Act 1948 and no worker shall be denied payment of minimum
wages. The Act also has provisions like displacement allowance, journey allowance and other
facilities like equal pay for equal work, ensuring of suitable conditions of work, medical facilities,
protective clothing, and compensation to next of kin in case of fatal accident or injury to any
workman in the place of work. All these provisions are much in line with Article 11 and Article 12
of ILO convention 181.The Act has provisions for appointing inspecting staff with certain powers
exercised by them under local limits which is again prescribed in Article 14 of C.181.Section
23 of the Act has an important provision of collection of data of the migrant workers through
maintenance of registers and records with particulars which is also mentioned in Article 6 of ILO
convention 181.13 However the Act is not extended to domestic workers who are exploited and
made victims of trafficking by placement agencies.
5.5 Emigration Act 1983
The Emigration Act includes special rules for registration of recruiting agents and certificate
provided to them for three years which can be renewed further.The registration process is facilitated
by Protector General of Emigrants appointed as registering authority by the Government. This
provision is in line with convention 181.The Emigration Act does not apply to certain immigrants
under two clauses (a) the recruitment or emigration of any person who is not a citizen of India and
Here workman means any person who is recruited by or through a contractor in one State under an agreement or other
arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal
employer in relation to such establishment.Sec 35 is a section on Power to make rules under the act.
For details see Inter-state Migrant workmen(regulation of Employment and Conditions of Service)Act 1979
12
Convention 181 available at ILOhttp://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_
ID:312326
13
Details available in The Inter-state Migrant Workmen (Regulation of Employment and conditions of service) Act, 1979 and C181.
11
(b)the control of recruiting in India for service of foreign states to which the Foreign Recruiting
Act,1874 (4 of 1974)applies.14 However, with regard to the Conventions stand on fee charging
there is flexibility as mentioned in article 7 Paragraph 1, Private employment agencies shall not
charge directly or indirectly, in whole or in part any fees or costs to the workers. Paragraph 2 in
the interest of the workers concerned and after consulting the most representative organizations
of employers and workers, the competent authority may authorize exceptions to the provisions of
paragraph 1 above in respect of certain categories of workers, as well as specified types of services
provided by private employment agencies. (ILO Convention 181)15.
In this context the Emigration Act in India under paragraph 15 A has certain provisions on fee
charging
All applications from the persons, individually or through recruiting agents or through other
permitted agents, who intend to go abroad on short term non-employment visit and requiring
suspension of emigration check requirements for a limited period (emigration suspension), shall be
accompanied by a demand draft of rupees one hundred drawn in favour of the Protector General
of Emigrants as fee in respect of each applicant.
Paragraph 25
The charges which the recruiting agent may recover from an emigrant in respect of services rendered
shall not exceed rupees five thousand in the case of skilled workers, rupees three thousand in the
case of semi skilled workers, rupees two thousand in the case of unskilled workers and other than
the above categories rupees ten thousand for which the recruiting agent shall give a receipt to the
emigrant.16
These are the exceptions which ILO convention 181 reaffirms thereby providing instructions to
countries to provide information on categories of workers with subsequent justifications for fee
charging. But here a question arises whether the flexibility on fee charging in ILO convention
would result to unscrupulous practices by recruiting agents in the name of fee charging thereby
charging of exorbitant fees not permissible under a countrys legal practice. However, there have
been reports on recruiting agencies in India dealing with immigration charging heavy fees from
the workers in the name of visa and processing fees. Such practices fall beyond the flexibilities
on paragraph 15 B and paragraph 25 of the Emigration Act 1983.The existing recruitment fee
ceilings are not in conformity with the market realities. It is a known fact that the expenditure
incurred by recruiting agents has risen significantly over the last two decades. In most of
the labour receiving countries, especially in the Gulf, the market for expatriate labour have
transformed from a sellers to a buyers market and the recruiting agents are required to make
paragraph 4 of foreign recruiting Act 1874 mentions about Power to impose conditions.- The Central Government may from
time to time, by general order notified in the Official Gazette, either prohibit recruiting for the service of any Foreign State, or
impose upon such recruiting any conditions which it thinks fit.
15
For details see Convention 181available at ILOhttp://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P121
00_INSTRUMENT_ID:312326
16
Details in the Emigration Act 1983
14
payments to the employers for obtaining placement orders. The amount demanded could vary
according to the number of labourers demanded, salary offered and relative supply conditions. It
is obvious that such increases in the expenditure of the recruiting agents are directly transferred
to the intending migrants. Inspite of such a rise of expenditure, the limit set on recruitment
fees, especially for unskilled labour, has not been revised ever since 1983. (Sasikumar and
Husain,2008).In fact such situations have compelled recruiting agents to charge heavy fees. The
existing loopholes within the Emigration Act have led to the formulation of a new proposed
the Emigration Management Bill 2011 which is based on ethical recruitment practices across
borders but is yet to be approved by the Government.
5.6 The Private Security Agencies (Regulation) Act 2005
This Act adheres to lot of important provisions mentioned in ILO convention 181. Article 3 of the
Convention mentions about a legal status of the private employment agencies to be determined
in accordance with national law and practice .The article also makes a provision for a system of
licensing for their proper regulation as per national practice. In the context of India, the Private
Security Agencies Regulation Act 2005 has provisions related to licensing as it is mentioned
in clause No.4 of the Act.17 The Persons or Private Security Agency cannot commence the
business of private security agency unless it holds a license. The license is granted under certain
conditions and the duration is initially for five years which can be renewed later by a controlling
authority.
The power to issue licenses assigned to controlling authority appointed under the Act has received
criticism on the selection criteria of the person to be appointed as the controlling authority who
should not be below the rank of Joint Secretary in a State. The major limitation of this Act is that
unless and until the rules under the Act are framed by the respective State governments, this Act
cannot be implemented. Another limitation is that since the power to implement this Act has been
given to the police department, one can hardly hope that the provisions of the act relating to labour
would really be implemented (Upadhyaya, 2011)
6
Proposed Legislations:
The existing legislations in India have protected rights of workers involved in many occupations
but a lot more needs to be done with regard to certain kinds of workers or job seekers who are
victims of exploitative practices by many placement agencies. The lack of regulation and monitoring
of certain kinds of PPAs have led to increasing exploitation of workers and specifically many
women, migrant workers, young jobseekers, domestic workers etc. Many PPAs are practicing
human trafficking due to lack of regulation and also resorting to many unfair practices to generate
profits. The Delhi Governments recently introduced bill ,The Delhi Private Placement Agencies
(Regulation) Bill 2012 has received a lot of media attention recently. There was mention of the Bill
in a national newspaper recently which is as follows:
For Details see Private Security Agencies (Regulation) Act, 2005
17
10
The death of two girls allegedly trafficked from Jharkhand for domestic work in Delhi only underlines
the harsh truth that there are no laws that govern domestic work. While the demand for a national
legislation gets louder, the fact remains that Delhi governments draft bill limited to placement
agencies - that was put up for objections and suggestions last August - is nowhere close to becoming
a law. The much announced and often cited panacea for the many ills surrounding domestic work,
the draft bill may not become a law if its not finalized for approval of Delhi assembly before the
monsoon session. The tenure of the current Congress-led government is coming to a close with the
assembly polls scheduled for later this year. The final contours of the draft which has drawn a lot
of criticism from human rights and activist groups working with domestic workers are yet to be
fixed. Top sources in the labour department pointed out that the latest delay was due to a debate
over whether the ambit of the proposed legislation should be expanded to include workers beyond
domestic workers engaged by placement agencies. A consensus has been arrived at for now that
the bill may be restricted to placement agencies for domestic workers. A meeting next month will
take a final decision and put up the final draft for approval of the cabinet. Based on the objections
and suggestions, some changes have been made to the final draft. For instance, it is now proposed
to also register the link person who introduces the domestic worker to a placement agency to guard
against trafficking and take measures against miscreants.(Times of India 29th April 2013)
Ministry of Overseas Indian Affairs proposed the introduction of the Emigration Management
Bill (EMBI), 2011 in Parliament and the repeal of the existing Emigration Act, 1983. The
proposed Bill embodies a paradigm shift in the management of emigration and promotes
ethical recruitment practices. The proposed bill will help modernize the legislative framework
governing emigration, facilitate legal emigration; discourage irregular migration; enhance
protection and welfare of emigrants; encourage ethical recruitment practices; enable market
friendly regulation of recruiters; and provide for more deterrent penalties against crimes such as
human smuggling.
6.1 New Guidelines on operation of PPAs:
The Director General of Training and Employment (DGET), Ministry of Labour and Employment,
Government of India, provided certain guidelines on operation of PPAs to be followed by various
State Governments /UTs Administration in India. The guidelines excluded those agencies
covered under Contract Labour (Regulation and Abolition)Act 1970 and Inter-State Migrant
Workmen(Regulation of Employment and Condition of Services)Act 1979.These guidelines
provided for registration of PPAs under a designated authority of State/UT, provision of regular
job seekers and monitoring of illegal practices. The provision for fee charging was restricted to a
maximum of Rs 100/ towards registration charges from job seekers in order to meet initial service
charges. There is also a provision for service charges to be paid by the employer to the PPAs in
mutual interest of each other.
While regulating the PPAs, the respective State/UTs will device their mechanism of interaction
between Public and PPAs.
11
It should be obligatory on the part of the PPAs to share the statistical information connected
with the registration and placement of jobseekers as prescribed by the State/UT Govt.Authorised
persons of the State/UT will have right to ascertain, the names of the employers to whom the
services are provided by the Private Placement Agency. (DGE&T 2004)18
The guidelines were circulated to the State/UT governments but there has not been any substantial
progress in this regard. The parameters of developing a regulatory framework are not clear as per
interaction of private and public employment agencies.There have not been instructions regarding
the interaction of public and private employment agencies.
In fact, the guidelines seem to be incomplete as there has not been any clear cut procedure mentioned
in the guidelines to be adhered to by various States and UTs. Many of the provisions of the guidelines
do not refer to any legal provisions as supplementing the guidelines. Moreover, there has not been
any clarity regarding the mechanisms of regulations mentioned in the guidelines. It can be further
reiterated that these are some of the initiatives undertaken by the government to regulate PPAs but
these initiatives have not been producing desired results due to many reasons. For instance, these
guidelines are instructions to State governments to formulate a mechanism for legislation which
may lead to lot of complexities arising due to multiple regulatory mechanisms. The guidelines may
not be operational due to the absence of a national legislation on regulation of PPAs.
7. Conclusion
There is no denying the fact that an analysis of existing legislative provisions concerning PPAs in
India and the new proposed legislations reveals that many of the legislations are in line with the
provisions of ILO Convention 181. In spite of the coverage, there have been criticisms with regard
to the provisions of the legislations from many scholars in the academia. Some of the legislations
have not been amended with the changing demands of the labour market due to corresponding
changes in the world economic order. Though the country has many labour legislations pertaining
to various kinds of workers yet many of them have not been amended with changing times. The
legislation on contract labour has serious loopholes since there has been growing prevalence of
contract labour in the present day economy post globalization. The flexible and dynamic labour
market scenario in India has made contract work or temporary work as a regular phenomenon
instrumental in creating employment opportunities for the masses. Therefore, there is a need to
contextualize the provisions of the law with the changing labour market trends and subsequently
make amendments wherever necessary. However, it can be argued that many of the existing laws
address some of the articles of the ILO Convention 181 but none of them fulfill the needs and
concerns of Placement Industry completely. Therefore, there is a need for a new legislation that
defines PPAs, caters to the specific needs of this industry, takes into account its operating mechanism
and various related issues like the charging of fee, registration, licensing, advertisement etc. At the
same time, the existing legislations need to be amended with the present day market situation
followed with more stringent regulatory mechanism to combat any kind of exploitation of workers
or jobseekers.
These guidelines were circulated to the Labour Secretaries of all State and UTs vide letter no.DGE&T-M-27014/1/2004EE.I,Governemnt of India, Minsitry of Labour and Employment.The guidelines included 15 points.
19
12
REFERENCES
Chandra,A., Khnijo,M.K and Mamgian,R.P., (2006), National Employment Service: Perspectives on
Development, International Labour Organisation, New Delhi
CIETT (2013), Economic Report, Brussels: International Confederation of Private Employment Agencies,
CIETT.
Deccan Herald(2012), Placement Agency Bill Not Adequate, July 30,2012,DHNS.
European Commission (2003), Employment in Europe, European Commission, Brussels
Ichino Fabriza M and Tommaso N, (2008). From Temporary Help Jobs to Permanent Employment: What
can we learn from Matching Estimators and their Sensitivity? Journal of Applied Econometrics, Vol
23, pp305- 327.
International Labour Organisation, (2011), Private Employment Agencies, Promotion Of Decent Work And
Improving The Functioning Of Labour Markets In Private Services Sectors, Issues paper for discussion
at the Global Dialogue Forum on the Role of Private Employment Agencies
in Promoting Decent Work and Improving the Functioning of Labour Markets in Private Services Sectors
(1819 October2011), International Labour Organisation, Geneva.
International Labour Organization (2007), Guide to Private Employmentm Agencies: Regulation, Monitoring
and Enforcement, International Labour Organization, Geneva.
Martinez, T. (1976), The Human Market Place: An Examination of Private Employment Agencies,
Transaction Books, New Burnswic, New Jersey.
Sasikumar S.K. and Hussain Z., (2008), Managing International Labour Migration from India: Policies and
perspectives, ILO Asia Pacific Working Paper Series, Subregional Office for South Asia, International
Labour Organization, New Delhi.
Upadhyaya, S. (2011), Labour Employment and Social Security Issues of Security Guards Engaged by
Private Security Agencies: A Case Study of Okhla and Noida, NLI Research Studies Series No:093/211,V.V.Giri National Labour Institute, Noida.
13
2. Decisions of the Supreme Court

2.1 Public Interest Litigations on service
matters?
(i) Public Interest Litigation on service
matters cannot be entertained.
(ii) The courts should filter out the frivolous
petitions and dismiss them with cost to
discourage petitions filed with oblique
motives.
(iii) Exemplary costs should be imposed on
failure to explain the possession of official
documents annexed with the PILs.
Facts: Several writ petitions were filed before
the Jammu & Kashmir High Court wherein
the mode of selection process and recruitment
rules relating to District and Session Judges
under the Jammu and Kashmir Higher
Judicial Rules, 1983 were challenged. The
dispute also related to percentage of direct
quota and other policy matters. The written
examination for recruitment was conducted
by the High Court. In the writ petitions, no
private respondent was impleaded; in other
words no selection of any particular person
was challenged. Hence, the petitioner did not
get any relief from the High Court.
Before Supreme Court: However, the
appellant before the Supreme Court admitted
that they have no grievance against any of
selected candidates. Hence, the Apex Court
considered the grievance relating to quota etc
as public interest litigation. To quote:-
14
7. ...In fact, to out query to the

appellant before us, it was fairly
submitted that they have no grievance
against any of the selected candidates
in that particular selection. Therefore,
if at all the appellants grievances are to
be considered, relating to ascertainment
of quota for direct recruit posts in these
appeals it would only amount to a
consideration by way of a Public Interest
Litigation which cannot be permitted to be
made, more so, when the appellants have
chosen not to challenge the selection of
any one of the candidates by way of direct
recruitment or any of the promotees.

The Honble Supreme Court referred to
their guidelines relating to entertainment of
service matters as Public Interest Litigation
contained in Orders dated 29 Aug 2003 issued
by the Chief Justice, wherein it was held as
under:
Cases falling under the following
categories will not be entertained as Public
interest Litigation and these may be returned
to the petitioners or filed in the PIL Cell, as
the case may be:
1. Xxxxxxx
2. Service matters and those pertaining to
Pension and Gratuity

The Supreme Court further relied on
their judgment in the case of Hari Bansh Lal
v Sahodar Prasad Mahto, AIR 2010 SC 3515

on the subject and held that the appeals are
as a pro bono publico and these cannot be
entertained as per guidelines of this court as
well as based on their earlier decisions wherein
it was held that Public Interest Litigation in
service matters cannot be entertained.

The reliance was also placed on the
judgment of Supreme Court in case of Ashok
Kumar Pandey v State of W.B. (AIR 2004 SC
280) wherein in Para 16 of judgment, it was
held as under:
As noted supra, a time has come to

weed out the petitions, which though
titled as public interest litigations are
in essence something else. It is shocking
to note that courts are flooded with a
large number of so-called public interest
litigations where even a minuscule
percentage can legitimately be called
public interest litigation. Though the
parameters of public interest litigation
have been indicated by this Court in
large number of cases, yet unmindful of
the real intentions and objectives, courts
are entertaining such petitions and
wasting valuable judicial time which, as
noted above, could be otherwise utilized
for disposal of genuine cases. Though in
Duryodhan Sahu (Dr) v Jitendra Kumar
Mishra, (AIR 1999 SC 114: 1998 AIR
SCW 3467) this Court held that in service
matters PILs should not be entertained,
the inflow of so-called PILs involving
service matters continues unabated in
the courts and strangely entertained.
The least, the High Courts could do is to
throw them out on the basis of the said
decision. The other interesting aspect is
that in the PILs, official documents are
being annexed without even indicting as

to how the petitioner came to possess
them. In one case, it was noticed that an
interesting answer was given as to its
possession. It was stated that a packet
was lying on the road and when out
of curiosity the petitioner opened it, he
found copies of the official documents.
Whenever such frivolous pleas are taken
to explain possession, the courts should
do well not only to dismiss the petitions
but also to impose exemplary costs. It
would be desirable for the courts to filter
out the frivolous petitions and dismiss
them with costs as aforestated so that the
message goes in the right direction that
petitions filed with oblique motive do not
have the approval of the courts.

Hence, the appeals were accordingly
dismissed.
Supreme Court: Mohan Lal v. High Court
of Jammu & Kashmir, 2014 Lab IC 3611
(SC).
2.2 Regularization of daily wagers

Legitimate
regularized
expectation
of
getting
(i) Appointment on daily wage basis is

not an appointment to a post according
to the rules. Usually, the projects in which
daily wagers were engaged, having come
to an end, their appointment is necessarily
terminated for want of work.
(ii) The status and right of a daily wager of
a Government concern are not equivalent
to that of a Government servant and his
15
claim to permanency has to be adjudged

differently.
(iii) A person appointed on daily wages or
on contract is aware of the consequences of
appointment being temporary, hence cannot
invoke the theory of legitimate expectation
for being confirmed in the post.
Facts: The Government of Bihar passed the
Bihar Agriculture Produce Marker (Repeal)
Act, 2006 vide which all Marketing Boards
or Marketing Committees or Bazar Samities
constituted under the original Act were
disbanded and the assets and liabilities of
such Boards vested in the State Government.
Vide Section 6 of the Act, the Officers and
employees of the Board were to be absorbed
by the State Government. The services of
daily wagers were terminated as there was
no work left. They prayed that they should
be considered as employees of the Board and
should be absorbed as one time measure, at
par with the officers and employees of the
Board. The State Government also appointed
a Committee of Secretaries to look into this
aspect and the said Committee also did not
recommend for the absorption of daily rated
employees.
Before High Court. The Patna High Court did
not grant any relief to the daily wagers, some
of whom were also getting pay scale at the
minimum of scale for years together. The High
Court held that the daily wagers constituted a
different class and cannot claim parity with
the regular officers and employees.
Before Supreme Court: The appellant before
the Supreme Court prayed that the daily
wagers had the legitimate expectation that in
due course they will be regularized and also
that they should be absorbed at par with the
officers and employees of the Board.
16
Legitimate Expectation.
On the issue of legitimate expectation, the
Supreme Court held as under:
19. Therefore, considering the facts of

the present case, it appears to us that the
appellants were never appointed through
a proper procedure. It is not in dispute
that they all served as daily wagers.
Therefore, it was within their knowledge
all the consequences of appointment
being temporary, they cannot have even
a right to invoke the theory of legitimate
expectation for being confirmed in the
post. Accordingly, we cannot accept
the contention of the appellants in the
matter.

The Supreme Court also relied on the
Constitution Bench judgment in the case of
State of Karnataka v Umadevi (3) & ors, 2006
AIR SCW 1991, wherein it was held on above
subject as under:
47. When a person enters a temporary

employment or gets engagement as a
contractual or casual worker and the
engagement is not based on a proper
selection as recognized by the relevant
rules or procedure, he is aware of the
consequences of the appointment being
temporary, casual or contractual in nature.
Such a person cannot invoke the theory of
legitimate expectation for being confirmed
in the post when an appointment to the
post could be made only by following a
proper procedure for selection and in
cases concerned, in consultation with the
Public Service Commission. Therefore,
the theory of legitimate expectation cannot
be successfully advanced by temporary,
contractual or casual employee. It cannot
also be held that the State has held out

any promise while engaging these persons
either to continue them where they are or
to make them permanent. State cannot
constitutionally make such a promise. It
is also obvious that the theory cannot be
invoked to seek a positive relief of being
made permanent in the post.
On status of daily wager.
The Supreme Court also held that the daily
wagers were not appointees in the strict sense
of the term appointment. They do not hold a
post. It was further held as under:
20.. It cannot be said that the status

of the daily wage employees can enjoy
or acquire the same status as that of the
regular employee. In these circumstances,
we do not find that there was any
discrimination between the daily wage
employees and the regular employees as
is tried to be contended before us.
22. . Appointment on daily wage basis

is not an appointment to a post according
to the rules. Usually, the projects in which
daily wagers were engaged, having come
to an end, their appointment is necessarily
terminated for want of work. Therefore,
the status and right of daily wagers of a
Government concern are not equivalent
to that of a Government servant and his
claim to permanency has to be adjudged
differently.

With above observations, the appeals
were dismissed; and judgment of Patna High
Court was upheld.
Supreme Court: Nand Kumar v. State of
Bihar, 2014 Lab IC 4088 (SC).
2.3
Disciplinary
retirement
proceedings
after
Disciplinary proceedings cannot be initiated

or continued after retirement of an employee
in the absence of relevant rule. Enquiry in
such cases shall lapse on retirement.
Facts: The services of an Assistant Engineer
were terminated after conducting disciplinary
proceedings by respondents vide order dated
27 Apr 1998. He challenged his termination
on various grounds and the Allahabad High
Court quashed the order of termination vide
judgment 10 Jan 06 on the grounds of violation
of principles of natural justice. However,
the High Court gave liberty to the employer
to conduct fresh disciplinary proceedings
in accordance with the Regulations. The
employee was reinstated on 26 Apr 06. Fresh
proceedings were initiated on 07 Jul 06. During
the pendency of proceedings, the employeepetitioner reached the age of superannuation
and got retired on 31 Mar 09.
Before High Court. The petitioner challenged
the continuance of disciplinary proceedings
after his retirement, in the absence of any
enabling provision in the relevant regulations,
by filing writ before the High Court. The
High Court held that there were no grounds
to interfere in the proceedings and directed
to complete the proceedings within four
months. Employee also filed review petition
before High Court and the same was also
dismissed.
Before Supreme Court: The appellant
challenged the judgment of the High Court on
the ground that in the regulations there was
no provision for continuance of disciplinary
proceedings after retirement; and there was
no provision under which his retiral benefits
17
could be curtailed in case the misconduct

was established. He relied upon the judgment
of Bhagirathi Jena v Board of Directors,
O.S.F.C and ors (AIR 1999 SC 1841) in this
respect. The relevant Para of this judgment is
reproduced as under:
7. In view of the absence of such a

provision in the aforesaid regulations,
it must be held that the Corporation had
no legal authority to make any reduction
in the retiral benefits of the appellant.
There is also no provision for conducting
a disciplinary enquiry after retirement of
the appellant and nor any provision stating
that in case misconduct is established,
a deduction could be made from retiral
benefits. Once the appellant had retired
from service on 30.6.95 there was no
authority vested in the Corporation for
continuing the departmental enquiry
even for the purpose of imposing any
reduction in the retiral benefits payable
to the appellant. In the absence of such an
authority, it must be held that the enquiry
had lapsed and the appellant was entitled
to full retiral benefits on retirement.
Averment by employer. The employer

on the other hand contended that the fresh
disciplinary proceedings were initiated
pursuant to the liberty given by the High Court
vide its judgment dated 10 Jan 06. Further, the
employer had the right to continue with the
proceedings even after retirement.

The Supreme Court relied on said ruling
and held that there was no provision in the
Uttar Pradesh Co-operative Employees
Service Regulations, 1975 for initiation or
continuance of disciplinary proceedings after
retirement. There was also no provision stating
18
that in case the misconduct was proved, any

deduction could be made from the retiral
benefits. It was further held:
9. Once the appellant retired from service

on 31.3.2009, there was no authority
vested with the respondents for continuing
the disciplinary proceeding even for the
purpose of imposing any reduction in the
retiral benefits payable to the appellant. In
the absence of such an authority it must
be held that the enquiry had lapsed and
the appellant was entitled to get full retiral
benefits.

The Supreme Court accordingly set aside
the judgment of Allahabad High Court.
Supreme Court: Ved Prakash Tiwari v. U.P.
Co-operative Institutional Service Board,
Lucknow & ors, 2014 Lab IC 4095 (SC).
2.4 Judicial review of penalty imposed

(iv) The quantum of punishment to be
imposed in cases of proved misconduct is
essentially the domain of the departmental
authorities.
(v) Where penalty is set aside being
shockingly disproportionate, Courts should
remit the matter back to the disciplinary
authority or the appellate authority with
direction to pass appropriate order of penalty
rather substituting or modifying the penalty.
Facts: An employee of LIC of India was
charge-sheeted for tempering with the official
record. This resulted in loss of Rs. 16001.90
to the employer. After conduct of disciplinary
proceedings following penalty was imposed
on him vide order dated 30 Dec 1998, i.e.
(a). Recovery of loss to the Corporation of

Rs. 16001.90; and
(b). Reduction in Basic Pay to the lowest time
scale (i.e. Rs. 1950/-).

His appeal before appellate authority was
rejected. He challenged the order by filing writ
petition before Madras High Court.
Employer placed reliance on Supreme Court

judgment in the case of Om Kumar v Union
of India, AIR 2000 SC 3689 in support of their
averment, wherein it was held as under:
Before Single Judge. The Single judge held

that enquiry was conducted as per rules and
charges were established. Hence, it did not
interfere with the penalty imposed.
Before Division Bench. The employee
challenged the judgment of Single Judge. The
Division Bench agreed with the judgment
of Single Judge so far as conduct of enquiry
was concerned. The Division Bench did not
disturb the first penalty relating to recovery of
loss. However, it modified the second penalty
and converted it from reduction to minimum
of pay scale to withholding of one increment
for one year with cumulative effect without
assigning any reason.
Before Supreme Court: The appellantemployer challenged the judgment of Division
Bench on the grounds that quantum and
choice of penalty was the exclusive domain
of disciplinary authority. The High Court
had no jurisdiction to modify the penalty as
enquiry was conducted as per rules and the
penalty imposed was not disproportionate
etc. No reasons were assigned by the Division
Bench while modifying the penalty. Employer
submitted that the scope of judicial review in
disciplinary proceedings was very limited.
If the High Court felt that penalty imposed
was disproportionate, then the matter could
have been remitted back/ remanded to the
disciplinary authority for fresh consideration.
71. Thus, from the above principles and

decided cases, it must be held that where
an administrative decision relating to
punishment in disciplinary cases is
questioned as arbitrary under Article
14, the court is confined to Wednesbury
principles as a secondary reviewing
authority. The court will not apply
proportionality as a primary reviewing
court because no issue of fundamental
freedom nor of discrimination under
Article 14 applies in such a context.
The court while reviewing punishment
and if it is satisfied that Wednesbury
principles are violated, it has normally
to remit the matter to the administrator
for a fresh decision as to the quantum
of punishment. Only in rare cases where
there has been long delay in the time
taken by the disciplinary proceedings
and in the time taken in the courts, and
such extreme or rare cases can the court
substitute its own view as to the quantum
of punishment.
The Supreme Court accepted the averments of

the appellant-Corporation and held as under:
12. We are of the opinion that the

High Court transgressed its limits of
judicial review by itself assuming the
role of sitting as departmental appellate
authority, which is not permissible in law.
The principles discussed above have been
summed up and summarized as follows in
the case of Lucknow Kshteriya Gramin
Bank (Now Allahabad Uttar Pradesh
19
Gramin Bank) & Anr v Rajendra Singh,

(2013) 12 SCC 372; (AIR 2013 SC 3540;
2013 AIR SCW 4731)}
a) When charge(s) of misconduct is proved
in an enquiry, the quantum of punishment
to be imposed in a particular case is
essentially the domain of the departmental
authorities.
b) The court cannot assume the function of
disciplinary /departmental authorities
and to decide the quantum of punishment
and nature of penalty to be awarded,
as this function is exclusively with the
jurisdiction of the competent authority
c) Limited judicial review is available to
interfere with the punishment imposed
by the disciplinary authority only in
cases where such penalty is found to be
shocking to the conscience of the court.
d) Even in such a case when the punishment
is set aside as shockingly disproportionate
to the nature of charges framed against
the delinquent employee, the appropriate
course of action is to remit the matter
back to the disciplinary authority or
the appellate authority with direction to
pass appropriate order of penalty. The
court by itself cannot mandate as to what
should be the penalty in such a case.
e) The only exception to the principle stated
in para (d) above, would be in those cases
where the co-delinquent is awarded lesser
punishment by the disciplinary authority
even when the charges of misconduct were
identical or the co-delinquent was foisted
with more serious charges. This would be
on the doctrine of equality when it is found
that the employee concerned and the co-
20
delinquent are equally placed. However,

there has to be a complete parity between
the two, not only in respect of nature of
charge but subsequent conduct as well
after the service of charge-sheet in the
two cases. If the co-delinquent accepts
the charge, indicating remorse with
unqualified apology, lesser punishment
to him would be justifiable.

The Supreme Court accordingly set
aside the judgment of Madras High Court and
restored the order of penalty imposed by the
employer.
Supreme Court: Life Insurance Corporation
of India and ors v. S. Vasanthi, 2014 Lab IC
4152 (SC).
2.5 Public appointments & backdoor

entry.
(i) The appointment made in the absence of
any advertisement or selection process, are
not protected and can validly be terminated
even after rendering any length of service.
(ii) For making public appointment, the
advertisement should be inserted along with
calling names from employment exchange
(iii) No person can be appointed even on a
temporary or adhoc basis without inviting
applications from all eligible candidates.
Facts: Respondent-employee was temporarily
appointed to the post of Constable vide order
14 Jan 1988 with the stipulation that his service
could be terminated without assigning any
reason or issue of show cause notice etc. In
year 2000, the High Court of Patna considered
the issue of backdoor appointments made in
the police. Resultantly, the Department of

Home, Bihar issued directions on 04 Sep
2000 to review all irregular appointments. As
a follow up action, the services of employee
were also terminated on 26 Sep 03 after issue
of show-cause notice to him.
Before Single Judge. The employee
challenged his termination by filing writ
petition before Patna High Court. The Single
Judge did not approve the argument that
employee has rendered 16 years of service
so his case be considered sympathetically.
The Single Judge dismissed the appeal with
following observation:
This Court is not satisfied that the

petitioner has made out a case for
interference with the order of termination
from what appears to be an illegal
appointment based on the spoil systems.
Xxxx
The submission that he had served for 16

long years and, therefore, his case should
be considered sympathetically does not
appeal to this Court.
The petitioner must perish by the same

sword by which he came.

challenged the judgment of Single Judge. The
Division Bench granted relief to the employee
following the judgment delivered on 18 May
05 in similar case (CWJC no. 5279/2004).
Before Supreme Court: The appellantGovernment challenged the judgment of
Division Bench on the grounds that the facts
in the judgment relied upon by the Division
Bench were distinguishable. In said case, no
show cause notice was issued while in the
present case, show because notice was issued.

The State further submitted that it was a case of
backdoor entry as no advertisement was issued
and no selection process was followed. They
pleaded that in some identical cases, the Patna
High Court in Hemkant Jha v State of Bihar,
2007 Lab IC 4005, upheld the termination of
similarly situated employees after the case was
remanded by the Honble Supreme Court.

After having pursued the records of
the case, the Apex Court observed that the
employee was appointed on the asking
of the Inspector General of Police. No
advertisement was ever issued and no
opportunity was given to eligible candidates
to compete and no selection process was
followed. The averments find favour with the
Supreme Court. The Supreme Court relied
upon their judgment in the case of State of
Orissa & Anr v Mamata Mohanty (2011) 3
SCC 436: (2011 AIR SCW 1332) wherein
it was observed on tainted appointments as
under:
36. Therefore, it is a settled legal

proposition 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 notice board etc that will not meet
the requirement of Articles 14 and 16 of
the Constitution of India as it deprives the
candidates who are eligible for the post,
from being considered. A person employed
in violation of these provisions is not
entitled to any relief including salary. For
a valid and legal appointment mandatory
compliance with the said constitutional
requirement is to be fulfilled. The equality
21
clause enshrined in Article 16 requires

that every such appointment be made by
an open advertisement as to enable all
eligible persons to compete on merit.

Relying upon above dicta and the fact that
the appointment was made without inserting
any advertisement, the Supreme court set
aside the judgment of Division Bench and
upheld the termination and also the judgment
of Single Judge by holding as under:
16. Accordingly, it has to be held that

in the absence of any advertisement or
selection process, the appointment of the
respondent is not protected and could
be validly terminated. Learned Single
Judge was justified in dismissing the writ
petition while the Division Bench erred
in interfering with the same.
Supreme Court: State of Bihar & ORS v.

Chandreshwar Pathak, 2014 Lab IC 4167
(SC).
2.6 Industrial Disputes Act, 1947. Sec.

10(1). The Limitation Act does not apply in
case of raising of an industrial dispute; and
the appropriate Government may make
reference of any industrial dispute at any
time.
Granting of back wages. The reinstatement
of an employee, on the finding of a competent
judicial/quasi-judicial body or Court that
the action taken by the employer was ultra
vires the relevant statutory provisions or the
principles of natural justice, should be with
full wages; or the employer should prove
that the employee was gainfully employed
during the intervening period.
22
Denial of back-wages to an employee,

who has suffered due to an illegal act of
the employer would amount to indirectly
punishing the concerned employee and
rewarding employer by relieving him of
the obligation to pay back-wages including
emoluments
Facts: A criminal case for misappropriation of
funds i.e. not depositing of amount of tickets
collected from passengers was initiated in
1993 against the appellant, a bus conductor
employed by Haryana Roadways. Resultantly,
he remained in judicial custody for some
period in 1994 and could not attend his duties.
His services were terminated on 21 Oct 94
because of criminal case and also because
of his absence from duty. No enquiry was
conducted before ordering termination. He
got acquittal in 2002 but was not reinstated.
He raised a belated industrial dispute. On
reference of industrial dispute u/s 10 (1),
the Labour Court vide its award dated 2009
directed his reinstatement with 60% wages.
Before High Court: Aggrieved by the award of
Labour Court, the employer filed writ petition.
The High Court remanded the case to Labour
Court for fresh adjudication. The Labour Court
in second award dated 17.5.2011 dismissed the
award on the ground that reference was time
barred. The workman challenged the fresh
award which was dismissed by Single Judge.
The Division Bench also dismissed the LPA
(Letter Patent Appeal) by its judgment dated
09 Jan 2012.
Before Supreme Court: The appellantworkman challenged his termination on
the ground that no enquiry was conducted
before termination; and the other ground of
misconduct of misappropriation was not proved
in criminal trial, so he deserved reinstatement.
Further there was no time limit for making a

reference of industrial dispute u/s 10(1) of the
ID Act, 1947 and the Limitation Act does not
apply in case of raising of industrial dispute.
The workman rightly raised the industrial
dispute after his acquittal.

The Supreme Court observed that no
enquiry was ever conducted; and some period
of absence of employee was due to judicial
custody; and further that there was no delay on
the part of workman in raising the industrial
dispute after his acquittal. It accepted the
averment of workman on the point that the
appropriate Government can make reference of
an industrial dispute at any time, by observing
as under:
11. In our view of the facts and

circumstances of the case on hand,
the reference was made by the State
Government to the Labour Court for
adjudication of the existing industrial
dispute; it was erroneously held to be
barred by limitation. This award was
further erroneously affirmed by the High
Court, which is bad in law and therefore
the same is liable to be set aside. to
Section 10(1) of the Act, the appropriate
Government at any time may refer an
industrial dispute for adjudication, if it
is of the opinion that such an industrial
dispute between the workman and the
employer exists or is apprehended..

The Supreme Court further noticed that
the Labour Court suo moto adjudicated the
issue of delay in making reference. This was
not a point of dispute referred by the State
Government.
Back wages: Then came the question of
granting of back wages on reinstatement of
the workman. The Supreme Court relied upon

their earlier judgment in the case of Deepali
Gundu Surwase v Kranti Junior Adhyapak
Mahavidhyalaya (D.Ed) and ors, (2013) 10
SCC 324; 2013 AIR SCW 5330, wherein the
principle of granting of consequential benefits
in case of illegal termination, dismissal etc
was highlighted as under:
22. The very idea of restoring an

employee to the position which he held
before dismissal or removal or termination
of service implies that the employee will
be put in the same position in which
he would have been but for the illegal
action taken by the employer. The injury
suffered by a person, who is dismissed
or removed or is otherwise terminated
from service cannot easily be measured
in terms of money. With the passing of
an order which has the effect of severing
the employer- employee relationship, the
latters source of income gets dried up.
Not only the concerned employee, but his
entire family suffers grave adversities.
They are deprived of the source of
sustenance. The children are deprived
of nutritious food and all opportunities
of education and advancement in life.
At times, the family has to borrow from
relatives and other acquaintances to
avoid starvation. These sufferings
continue till the competent adjudicatory
forum decides on the legality of the action
taken by the employer. The reinstatement
of such an employee, which is preceded
by a finding of the competent judicial/
quasi-judicial body or Court that the
action taken by the employer is ultra
vires the relevant statutory provisions or
the principles of natural justice, entitles
23
the employee to claim full wages.If the

employer wants to deny back-wages to
the employee or contest his entitlement
to get the consequential benefits, then it
is for him/her to specifically plead and
prove that during the intervening period
the employee was gainfully employed
and was getting the same emoluments.
Denial of back-wages to an employee,
who has suffered due to an illegal act of
the employer would amount to indirectly
punishing the concerned employee and
rewarding the employer by relieving
him of the obligation to pay back-wages
including the emoluments.

The Supreme Court set aside the award
of Labour Court and the judgment of Single
Judge as well as Division Bench. Undisputedly
the employee was terminated in 1994 and he
raised the industrial dispute after his acquittal
in 2005. Hence, the Apex Court allowed the
reinstatement of workman with back wages
with all consequential benefits such as
continuity of service, wage revisions and
other statutory monetary benefits as the
respondents (Haryana Roadways) had been
litigating the dispute without tenable and
acceptable reasons.
Supreme Court: Raghubir Singh v. General
Manager, Haryana Roadways, Hissar, 2014
Lab IC 4266 (SC)
2.7 Industrial Disputes Act, 1947. Sec.

25 F. Reinstatement in cases of illegal
retrenchment.
(1) Where retrenchment was found illegal,
re-instatement with back wages was not the
natural consequence. Compensation could
24
be awarded in lieu of reinstatement and

also back-wages.
(2) Re-instatement may be denied in
exceptional circumstances like where
industry is closed or is in severe financial
doldrum or workmen concerned has secured
better or other employment elsewhere etc.
Facts: Appellant an employee of BSNL
was retrenched from his services. The Central
Government Industrial Tribunal, Calcutta
observed that the retrenchment was in violation
of Sec. 25-F of the Industrial Disputes Act,
1947 and passed an award on 23 May 2002
directing his re-instatement without backwages. The CGIT allowed a compensation
of Rs. 20,000/- in lieu of back wages. The
employer challenged the award before Single
judge of Calcutta High Court who upheld the
award.
Before High Court: Aggrieved by the
judgment of Single Judge and award of
CGIT, the employer filed writ appeal. The
Division Bench partly quashed the award.
The reinstatement of employee was quashed
without assigning any reason but it did not
intervene so far as payment of compensation
of Rs. 2,000/- was concerned. This time, it was
turn of workman to challenge the judgment of
Division Bench before Supreme Court.
Before Supreme Court: The appellantworkman submitted that he was wrongfully
retrenched, hence, he was entitled to be reinstated with back wages. The Supreme Court
accepted the submissions of the workman that
it was not a case where reinstatement to him
could be denied in the light of law laid down by
three Judge Bench Supreme Court judgment
in the case of Surendra Kumar Verma & ors
v Central Government Industrial Tribunalcum-Labour Court, New Delhi & Anr, (1980)
4 SCC 443; AIR 1981 SC 422, wherein it was
held as under:
11. Plain common sense dictates that

the removal of an order terminating the
services of workman must ordinarily lead
to the reinstatement of the services of the
workman. It is as if the order has never been,
and so it must lead to back wages too. But
there may be exceptional circumstances
which make it impossible or wholly
inequitable vis--vis the employer and
workman to direct reinstatement with full
back wages. For instance, the industry
might have closed down or might be in
severe financial doldrum; the workmen
concerned might have secured better
or other employment elsewhere and so
on. In such situations, there is a vestige
of discretion left in the court to make
appropriate consequential orders. The
court may deny the relief of reinstatement
where reinstatement is impossible because
the industry has closed down. The court
may deny the relief of award of full
back wages where that would place an
impossible burden on the employer. In such
and other exceptional cases the court may
mould the relief, but ordinarily the relief to
be awarded must be reinstatement with full
back wages. The relief must be awarded
where no special impediment in the way
of awarding the relief is clearly shown.
True, occasional hardship may be caused
to an employer but we must remember that,
more often than not, comparatively far
greater hardship is certain to be caused to
the workmen if the relief is denied than to
the employer if relief is granted.

On the issue of awarding compensation
in lieu of back wages, it was held that
compensation could be awarded in lieu of
back wages. The Honble Apex Court relied
on their judgment in the case of Jagbir Singh
v Haryana State Agriculture Marketing Board
& Anr, AIR 2009 SC 3004 on this aspect as
under:
. 7. It is true that earlier view of this

Court articulated in many decisions
reflected the legal position that if the
termination of an employee was found
to be illegal, the relief of reinstatement
with full back wages would ordinarily
follow. However, in recent past, there
has been a shift in the legal position
and in a long line of cases, this Court
has consistently taken the view that
relief by way of reinstatement with
back wages is not automatic and may
be wholly inappropriate in a given fact
situation even though the termination of
an employee is in contravention of the
prescribed procedure. Compensation
instead of reinstatement has been held
to meet the ends of justice.

The Supreme Court stated that the
Division Bench gravely erred in setting aside
the judgment of Single Judge and award of
CGIT, as termination was held to be bad in
law for non-compliance with the statutory
provisions of the ID Act. The Apex Court
accordingly set aside the judgment of Division
Bench and restored the award of CGIT.
Supreme Court: Tapash Kumar Paul v.
BSNL & another, 2014 Lab IC 4486 (SC)
25
3. Decisions of the High Courts
3.1 National Commission for Women Act,

1990
National Commission of Women is not a
Court. It is not entitled to arrive at final
conclusions or grant reliefs that a civil
or criminal Court can. The Act does not
envisage enforcement of the commissions
directions.
resources. The employee (Director) further

approached the National Commission of
Women (NCW). The NCW enquired into the
matter and framed following issues on 26 Oct
2013 for determination, i.e.
1. To determine whether Vishaka Guidelines
were followed by original employer
(KMPG)
It can investigate the matter and can only

recommend the remedial measures. It
can not determine the rights of respective
parties.
2. Exact nature of sexual harassment and if

related evidence on record was available
The commission has no jurisdiction to

determine issues of unfair dismissal or
whether such dismissal has caused loss of
future opportunity or demand a letter of
apology, or direct payment of compensation,
or grant relief by way of ordering payment
of bonus.
5. Whether the dismissal caused loss of

future career opportunity?
Facts: A Director of petitioners Private Ltd

Company was sacked on 30 Nov 2006. She was
paid her contractual dues and all formalities
were completed before her termination. She
was given ample opportunity to improve
her performance before her termination. She
alleged sexual harassment. She filed complaint
before Maharashtra State Commission
for Women. On the direction of the State
Commission, an internal committee was also
formed to enquire into the matter. In December
2010, the State Commission expressed their
inability to process the complaint for want of
26
3. Reasons of termination of services

4. Whether there was unfair dismissal?
6. Whether this Committee can recommend

to an employee as follows:
- Letter of apology
- Compensation
- Relief
- Bonus
- Benefits arising out of this dispute
- Any other relief.
Before High Court: The petitioner-employer

filed a Writ of Certiorari for quashing of
the proceedings initiated by the National
Commission for Women (NCW) on the
grounds of being illegal and arbitrary etc.
The petitioner stated that NCW cannot
adjudicate or determine the rights of the
however make recommendations on the

basis of such facts in the larger interests
of women. If a prima facie case is made
out, the commission must issue notice to
the organization and hear them before
recommending remedial measures. The
commission is however not empowered
to decide the rights of parties and due
care must be taken in this behalf. If the
commission proceeds to determine any
such issues there will be parallel enquires
underway which is hardly desirable.
Moreover, no purpose will be served by
the commission arriving at finding of
granting reliefs or issuing directions
since the commission in not a Court.
The Act does not envisage enforcement
of the commissions directions.
parties. More so, the employee also filed

criminal case and the matter was pending
before the Metropolitan Magistrate.

Hence the question for determination
before the High Court related to the powers
and jurisdiction of the NCW. The High
Court referred to Section 10 (1) (Chapter III)
of National Commission for Women Act,
1990 which gave power to commission to
investigate and examine the all matters relating
to safeguards provided for women under
the Constitution and non-implementation
of laws, policy decisions etc. Under Section
10(4), it had the powers to issue summons
and enforcing the attendances of any person
and requiring the discovery and production of
any document and related matters like issuing
commissions for the examination of witnesses
or documents.
The High Court held on above issues as
under:(a).Issue no. 1. The Commission may entertain
individual complaints to ascertain whether
Vishaka guidelines and rules were followed
(para 53).
(b). Issue no. 2. On identifying the exact nature
of sexual harassment etc, the High Court held
as under:
. 54. we clarify that the commission

will have jurisdiction to inquire into
complaints to arrive-ascertain the
existence of a prima facie case of violation
but should not proceed to adjudicate
upon complaints or indict respondents
or grant special reliefs. No doubt, it
may be necessary for the commission to
delve into the facts but it must not arrive
at conclusions or grant reliefs. It may

Regarding following issues (3 to 6)
framed by the Commission, i.e.
3. Reasons of termination of services
4. Whether there was unfair dismissal?
5. Whether the dismissal has caused loss of
future career opportunity?
6. Whether this Committee can recommend
to an employee as follows:
- Letter of apology
- Compensation
- Relief
- Bonus
- Benefits arising out of this dispute
- Any other relief.
The High Court held that all these were beyond

the jurisdiction of Commission. It also held as
under:-
27
56. If in the course of carrying out

the investigation it observes violation
of womens right, the commission may
only recommend measures to prevent a
fait accompli to that complainant. In the
present case, therefore, the commission
has no jurisdiction to determine whether
or not there was an unfair dismissal
or whether such dismissal has caused
loss of future opportunity. Nor can the
Commission demand a letter of apology,
direct payment of compensation, or grant
relief by way of ordering payment of
bonus.
The High Court further concluded about the

powers of Commission as under:
28
. 59. There is no doubt that by virtue of

Section 10(1)(f) the commission can look
into complaints addressed to it and take
suo moto notice of matters in relation
to deprivation of womens welfare
related policy, decisions, guidelines and
instructions. The commission is also
empowered to take up such issues with
appropriate authorities. The powers
of the commission while carrying out
investigation in relation to the aforesaid
matters including limited powers of a civil
Court. However, it does not appear to us
that the provisions of section 10(4) invest
the commission with powers of a civil
Court with the intention of enabling the
commission to arrive at the findings of fact
which will bind the parties irretrievably.
This can be inferred from the fact that
empowerment of the commission under
section 10(4) is for the purposes listed in
section 10(1). The intention is that the
commission is entitled to act as guardian
of womens rights with a view to ensuring
that womens rights are protected or not

rendered inaccessible.

Regarding granting of nature of relief
by the Commission, the High Court held as
under:
60. As regards the second issue, namely,

nature of reliefs the commission can
grant to individual complainant we are
of the view that the commission may
after investigating the complaint take up
the matters with appropriate authorities
including employer or such other persons
whose action or inaction have given rise
to such complaints. We are of the view that
the commission is not entitled to arrive at
final conclusions or grant reliefs that a
civil or criminal Court can.
Bombay High Court: KMPG India Pvt.

Ltd. v. National Commission for Women,
New Delhi, 2014 Lab IC 4311 (Bom-DB).
3.2 Employees Compensation Act, 1923

v. Mahatma Gandhi National Rural
Employment Guarantee Act, 2005
Employees working under MGNREGA
were not covered under the provisions of
Employees Compensation Act, 1923; but
were entitled to ex-gratia payment of Rs.
25000/- u/s 5 of MGNREGA in the event
of death or permanent disablement during
and course of employment.
Facts: Deceased, Malham Kuwar, aged 22
yrs., was working in MGNREGA for the
construction of Baiga Dharsa Sadak Mitti
Marg in Rajnandgaon Distt (Chhattisgarh).
During the course of employment he became
unconscious and due to lack of primary medical

care he died on 04 Jan 07. His legal heir filed
claim for compensation under the Employees
Compensation Act and the Commissioner
awarded a compensation of 1,65,934/- along
with interest and penalty vide order dated 05
Dec 2007.
Before High Court: The petitioner-employer
challenged the order of Commissioner on the
ground that the Employees Compensation Act,
1923 was not applicable in case of employees
working under the MGNREGA, 2005. It was
contended on behalf of the petitioner that the
said Act has special provisions for providing
livelihood for 100 days in every financial year.
U/s 28 of the Act, it has over-riding effect on
other Acts. Sec 28 read as under:
28. Act to have overriding effect.-The

provisions of this Act or the schemes
made thereunder shall have effect
notwithstanding anything inconsistent
therewith contained in any other law for
the time being in force or in any instrument
having effect by virtue of such law:

It was further submitted by employer that
as per Clause 26, Schedule-II under Section 5
of the Act, a sum of Rs. 25000/- was payable
as an ex-gratia amount in case of death or
permanent disablement etc. Said provision
read, as under:
26. If a person employed under a

scheme dies or becomes permanently
disabled by accident arising out of and
in the course of employment, he shall be
paid by the implementing agency an exgratia payment at the rate of twenty-five
thousand rupees or such amount as may
be notified by the Central Government,
and the amount shall be paid to the legal
heirs of the deceased or disabled, as the

case may be.

The respondent-legal heir on the other
hand submitted that that the ex-gratia payment
was in addition to the compensation under the
Employees Compensation Act and not in lieu
of compensation payable under the said Act.

The High court upheld the averments
of the employer and held that the expression
notwithstanding has the over-riding effect
on provisions or other Acts. The High Court
held as under:
16. Thus, in view of the aforesaid

discussion, it is held that Section 28 of
MGNREGA, 2005 shall have over-riding
effect over the provisions of Employees
Compensation Act, 1923 and by virtue
of Clause 26 of Schedule-II enacted
under Section 5 of MGNREGA, 2005, the
workmen/ labourers will be entitled only
for ex-gratia payment of Rs. 25,000 in
case of death; or such an amount as may
be notified by Central Government and the
application before the Commissioner under
the provisions of Employees Compensation
Act, 1923 claiming compensation over and
above the amount of ex-gratia payable
under the scheme of the Act of 2005 would
not be maintainable. Thus substantial
question of law is answered accordingly.

The High Court set aside the order of
Commissioner and ordered to pay ex-gratia
amount of Rs. 25,000/- within one month, if
not already paid.
Chhattisgarh High Court: Chief Executive
Officer v. Chandrika Bai, 2014 Lab IC 3697
(Chh)
29
3.3 Disciplinary proceedings:

Revisionary Authority has the powers to
suo moto take cognizance of penalty and
after giving notice to the charged officer,
may confirm or modify the order of penalty
within six months of communication of
order of penalty.
Facts: A Constable of CISF posted in ONGC,
Ahmadabad was deputed for election duty in
the State of Jharkhand vide order dated 31 Oct
09. He orally conveyed his intention of not
attending the election duty to his Company
Commander as under:
Even though I have been posted for

election duty, I am not going to go. You
may do whatever you want. I have already
spoken to Assistant Commandant You
are showing partiality, I am not going to
go for election duty. I will drag you to the
Court even if I have to face suspension or
lose my service.

The petitioner got himself admitted in
hospital and obtained medical certificate with
the intent to avoid election duty. Later it was
found that he was not suffering from any major
ailment. This was the major cause leading to
initiation of disciplinary proceedings, though
there were other issues like past service record
etc, which were not of much relevance as far as
principles evolved in this case are concerned.
After conduct of disciplinary proceedings,
the IO proved the charges. The disciplinary
authority imposed a penalty of reduction
of pay by two stages for three years, which
would have effect of postponing his future
increments also.

The petitioner did not file any appeal
against the penalty. However, the revisionary
30
authority suo moto took cognizance of the

case and found that the penalty imposed was
very mild and inadequate with reference to the
proved misconduct. It issued a show cause
notice (of its own- without any reference
from anywhere) to the employee as to why
the penalty should not be enhanced from
reduction of pay by two stages to that of
removal from service. The reply of employee
was considered and an order of removal from
service was passed by the revisionary authority
under Rule 54 of Central Industrial Security
Force Act, 1968.
Before High Court: Thus, the major legal
issue involved was whether the revisionary
authority can suo moto initiate action
for enhancing the penalty imposed on an
employee. Rule 54 supra reads as under:54. Revision(1) Any authority superior to the authority
making the order may either on his own
motion or otherwise call for the records
of any inquiry and revise any order under
these rules, and may
(a) Confirm, modify or set aside the order; or
(b). confirm, reduce, enhance or set aside

the penalty imposed by the order, or
impose any penalty where no penalty has
been imposed: or
(c). Remit the case to the authority which

made the order or to any other authority
directing such authority to make such
further enquiry as it may consider proper
in the circumstances of the case; or
(d) pass such order as it may deem

fit, within six months of the date of
communication of the order proposed to
be revised;

Appreciating the above Rule and the
seriousness of the charges, the High Court did
not find any illegality in revising the penalty to
that of removal. The High Court observed that
the revisionary authority had already given the
notice to the employee along with tentative
reasons before enhancing the penalty. Hence
there was no error in the order.
(NOTE: The Editorial Board found that
similar provision also exists in the Central Civil
Services (Classification, Control and Appeal)
Rules, 1965. Readers may refer to Rule 29 (1)
of CCS (CCA) Rules, 1965. Both are couched
in same language. It is seen that majority of
CCA Rules of State Governments and PSUs
are similar in nature. Hence, aforesaid
judgment has universal application.)
Gujarat High Court: P. V. Kumar v. Central
Industrial Security Force & another, 2014
Lab IC 4323 (Guj-DB).
3.4 Review of judicial orders.

The power of review can be exercised for
correction of a mistake but not to substitute
a view or discovery of new and important
matter or evidence which, after the exercise
of due diligence, was not within knowledge
of the petitioner or could not be produced
by him.
Jurisdiction and scope of review is not that
of an appeal and it can be entertained only
if there is an error apparent on the face of
the record
Facts: It was alleged by a woman Joint Judge
that one male Judicial Magistrate First Class
on 14.11.1991 at around 9.30 p.m. entered
her house in a drunken condition. On her

complaint an enquiry was conducted and order
of dismissal was passed against the Judicial
Magistrate on 05.04.1993 by the administrative
side of the High Court of Gujarat.
Before High Court. The employee challenged
his dismissal before Gujarat High Court. The
single judge quashed the order of dismissal,
which was upheld by the Division Bench vide
its judgment dated 27 Mar., 14. The order read
that the delinquent (Magistrate) be treated to
have continued in service and retired on
the day of his superannuation and he be
paid all the benefits including full back
wages with all the retiral benefits
Review application. The Gujarat High Court
is a petitioner in the review petition and has
prayed to recall the judgment dated 27 Mar
14. Hence, the judgment mainly deals with
the grounds on which a review petition
could be filed. In para 6 of the judgment,
the High Court relied on the judgment of
Apex Court in the case of Kamlesh Verma
v Mayawati and others, AIR 2013 SC 3301,
wherein the Apex Court underlined the
grounds for entertaining review petitions;
and also distinguished between the review
and appeal as under:

This Court has repeatedly held in various

judgments that the jurisdiction and scope
of review is not that of an appeal and it
can be entertained only if there is an error
apparent on the face of the record. An
error which is not self-evident and has to
be detected by a process of reasoning can
hardly be said to be an error apparent
on the face of the record justifying the
Court to exercise its power of review.
A review is by no means an appeal in
31
disguise whereby an erroneous decision

is reheard and corrected, but lies only for
patent error. Error contemplated under
the rule must be such which is apparent
on the face of the record and not an error
which has to be fished out and searched.
It must be an error of inadvertence.
The power of review can be exercised
for correction of a mistake but not to
substitute a view. The mere possibility of
two views on the subject is not a ground
for review. Review proceedings are
not by way of an appeal and have to be
strictly confined to the scope and ambit
of Order XLVII 15, Rule 1 of CPC. In
review jurisdiction, mere disagreement
with the view of the judgment cannot be
the ground for invoking the same. As long
as the point is already dealt with and
answered, the parties are not entitled to
challenge the impugned judgment in the
guise that an alternative view is possible
under the review jurisdiction.

Thus, in view of the above, the following
grounds of review are maintainable as
stipulated by the statute:
(A) When the review will be maintainable:(i) Discovery of new and important
matter or evidence which, after the
exercise of due diligence, was not
within knowledge of the petitioner
or could not be produced by him.
(ii) Mistake or error apparent on the
face of the record.
(iii) Any other sufficient reason.
(B) When the review will not be maintainable:(i) A repetition of old and overruled
argument is not enough to reopen
concluded adjudications.
32
(ii) Minor mistakes of inconsequential

import.
(iii) Review proceedings cannot be
equated with the original hearing of
the case.
(iv) Review is not maintainable unless the
material error, manifest on the face of
the order, undermines its soundness
or results in miscarriage of justice.
(v) A review is by no means an appeal
in disguise whereby an erroneous
decision is heard and corrected but
lies only for patent error.
(vi) The mere possibility of two views on
the subject cannot be a ground for
review.
(vii) The error apparent on the face of the
record should not be an error which
has to be fished out and searched.
(viii) The appreciation of evidence on
record is fully within the domain
of appellate Court. It cannot be
permitted to be advanced in the
review petition.
(ix) Review is not maintainable when same
relief sought at the time of arguing the
main matter had been negative.

The High Court refused to review the
judgment of Single Judge which was upheld
by the Division Bench on the grounds that
same relief had been sought from the Division
Bench earlier or the specific grounds were not
raised before the Single Judge and the Division
Bench.
Gujarat High Court: High Court of Gujarat
v. State of Gujarat, 2014 Lab IC 4441 (GujDB).
3.5 Disciplinary proceedings: Reasonable

opportunity to defend
(i) Not allowing defence witnesses is
violation of principles of natural justice.
(ii) If departmental/listed witnesses are
not at the mercy of IO, then the defence
witnesses also cannot be at the mercy of
IO, as the same will be disadvantageous
to the charged officer. Rules only put an
obligation on an employee to give relevance
of witnesses to avoid indiscriminate naming
of defence witnesses and give no authority
to IO to adjudicate on the relevance of
witnesses.
Facts: A charge-sheet was issued to a Manager
of Patighanpur Branch (Medak District) of the
Bank for non-recovery of outstanding amount
of ` 64, 53,000/- from M/s. Galaxy Wires Pvt
Ltd. On conclusion of proceedings, a penalty
of reduction of pay by 8 stages for a period of
one year with cumulative effect was imposed
on him.
Before Single Judge of High Court: The
Officer challenged the penalty on the ground
that he was not given reasonable opportunity
to defend himself as only one out of seven
defence witnesses was allowed by the inquiry
officer (IO). He did not sanction the loan to
the party hence he wanted to examine the
senior officers who sanctioned the loan. He
had given the relevance of all the defence
witnesses and the IO had no jurisdiction to
disallow the witnesses especially when the
disciplinary authority had the prerogative
to include any number of listed witnesses
to substantiate the charge. In other words,
if allowing of departmental/listed witnesses
was not at the mercy of IO; then allowing
of defence witnesses should also not be at
the mercy of IO. The Single Judge set aside

the penalty and left it open to the employer
to proceed against the employee after giving
him reasonable opportunity. IO disallowed six
out of seven defence witnesses on the ground
of vagueness.
Before Division Bench: The Bank challenged
the judgment of Single Judge before the
Division Bench of the High Court and justified
the action of the IO. The Division Bench
upheld the judgment of Single Judge and held
as under:
15. One of the hallmarks of a proper and

lawful enquiry is giving an opportunity
to the affected party. Even where the
relevant provisions of law are silent on
this aspect, the requirement is mandatory.
An indictment of an individual, whether
an ordinary citizen or an employee,
without giving him a reasonable
opportunity would become illegal on that
account alone, and without the necessity
of demonstrating another violation.
Examination of witnesses, be it, by the
department, or by the charged employee,
is an important facet of the enquiry. Bereft
of the oral or documentary evidence, the
proceedings partake the character of
mere allegation and denial, which in turn
does not lead the matter any further. As
observed earlier, the requirement under
Rule 6(10), to indicate the relevance
of the proposed witnesses, is to avoid
indiscriminate naming of person as
witnesses. Beyond that, it has no other
purpose to serve. If the intention of the
rule making authority was to confer or to
undertake a mini-adjudication as to the
relevance of witnesses, specific provision
would have been incorporated in the
Regulation.
33

The Division Bench further held that the
list of witnesses of the disciplinary authority
even do not mention the relevance of witnesses
and is not open to the scrutiny of the IO. It
was further held:
16.. If that is the facility given to the

department or the appointing authority,
the delinquent employee cannot be placed
at a disadvantageous position, much
less he can be placed at the mercy of the
enquiry officer. The denial of permission
to the respondent by the enquiry officer,
to examine as many as 6 witnesses, was
nothing but a clear and blatant violation
of principles of natural justice, apart
from breach of Regulation 6 itself.

As per Regulation 6 of the UCO Bank
Officer Employees (Discipline and Appeal)
Regulations, 1976, the charged officer was
required only to give the relevance of defence
witnesses and defence documents. Said Rule
did not allow the IO to adjudicate on the
relevance of witnesses.
(Note. There are similar provisions in all rules.)

The Division Bench held that an order
passed in violation of principles of natural
justice must end with the setting aside of
such order. However, where serious charges
are alleged, that should not be a boon to the
employee. The Division Bench thus did not
interfere with the judgment of single judge
which set aside the order of penalty but gave
liberty to the employer to proceed further in the
enquiry after giving reasonable opportunity to
the charged officer.
Hyderabad High Court: The UCO Bank
and Ors v. L.R. S. Murthy, 2014 Lab IC
3635 (Hyd-DB).
34
3.6 Industrial Disputes Act, 1947. Sec. 25

(o). Closure.
A subsidiary industry is an independent
unit and it has the right to apply for closure
of its industry.
The concept of principal and subsidiary
employer is limited to the extent of enabling
the aggrieved workmen to recover their
wages or to enforce their rights but they
cannot insist that the principal industry
should be made a party.
Facts: A subsidiary unit sought permission
of the Government of Andhra Pradesh
(appropriate government) for its closure u/s
25(o) of the Industrial Disputes Act, 1947.
The permission was accorded on 24 Apr 98.
The grievance of petitioner union was that
the permission granting closure was illegal
because the application for closure was filed
by the subsidiary industry/unit and not by the
principal industry (principal employer). The
subsidiary industry on the other hand contended
that a subsidiary unit was an independent
entity and there was no requirement of the
principal to initiate any action for closure of a
subsidiary industry.
Ruling by High Court: The Division Bench
of the High Court accepted the averment of
respondent industry by observing as under:
5. Be that as it may, an industry, in the

context of being accorded permission, or
granted license, is an independent legal
entity. The concept of principal employer
and subsidiary employer, does not have
any bearing on this aspect. Just as an
individual or a company, brings about an
industry by obtaining necessary licence,
that very person or agency can seek the
permission for its closure. Even where

such an industry answers the description
of principal employer, the participation
of the subsidiary employer, or vice-versa,
does not become necessary.
7. The application of the concept of principal
and subsidiary employer is limited to the
extent of enabling the aggrieved workman
to recover the wages or to enforce his
rights. When a particular industry seeks
its closure, a workman cannot insist that
another industry must join the proceedings.
At the most, the workmen or the unions
can raise an objection as to the accuracy
and correctness of the application filed for
closure. In other words, if the application
filed by 2nd respondent (subsidiary
industry) is defective in any manner, it is
always open to the petitioners to point
out the same before the Tribunal. The
strength of that contention can certainly
be assessed by the Tribunal itself. There
is no basis to insist that the 3rd respondent
(principal industry) must be made a party
to the proceedings.
Hyderabad High Court: Lime Kilns and
Saw Mills Workers Union & Anr v. State of
A.P. & ors, 2014 Lab IC 4409 (Hyd-DB).
3.7 Building and Other Construction

Workers Welfare Cess Act, 1996
(v) Constitutional validity. The Parliament
had the authority to pass said Act under
Entry 97 of List I (Union List). Use of
construction material under cost of
construction does not bring it under Entry
54 or 66 of List II.
(vi) Cess vis--vis Tax. The Cess does

not become a part of consolidated fund
and was not subject to appropriation by
legislature. It is credited into a special fund
earmarked for carrying out the purposes of
the Act under which it is collected. Cess has
character of a fee as distinct from a tax.
(vii) Rule 3 of the BOCWW Cess Rules was
not ultra vires the BOCWW Cess Act and
Article 246 of the Constitution of India and
levy of cess @ 1% on the cost of construction
was neither arbitrary nor excessive.
Facts: Petitioner-Abhijeet Hazaribagh Toll
Road Ltd challenged the authority of Parliament
(Central Legislature) to pass the said Act.
Further Section 3 of the Act was challenged on
the ground that one percent cess is deducted
at source on the cost of construction without
defining the term cost of construction. It was
prayed to declare Rule 3 of Building and Other
Construction Workers Welfare Cess Rules,
1998 as ultra vires the present Act and Article
246 of the Constitution. An averment was made
that the Labour cost in construction only comes
to 10 to 15% but the Cess is being deducted
on the entire cost. It was thus prayed to quash
the Central Government Notification S.O. 2899
dated 26 Sep 1996 vide which Cess @ 1% was
levied on the cost of construction, for which
notice was issued to the petitioner company.
Before High Court: The State of Jharkhand
filed their counter affidavit and pleaded the
competency of the Central Government to
enact the law for the welfare of construction
workers. The major highlights of the judgment
are given in the paras given below.
Parliaments competency to pass Act: The
issue raised was that the Parliament had
no power to enact the law as purchase of
35
construction material fall under Entry 54 of

List-II and construction material was major
component of construction cost. In other
words it was contended to be a State subject.
The High Court rejected these averments by
holding as under:
21. The construction work/ construction

of the road even though involves purchases
of construction material that does not take
away the essence of the involvement of
the construction worker. As pointed out
earlier, the object of BOCW (Regulation
of Employment and Conditions of Service)
Act was intended to provide safety, health
and welfare measures for the workers
engaged throughout the country in
building and other construction works. To
construe the BOCWW Cess Act as levying
tax covered under Entry 54 and 66 of List
II would completely miss the object of the
BOCWW Cess Act. We find no merit in
the contention that because of use of
construction materials like Boulders,
Sand, Cement, Bricks, Soil, Iron and
machineries, construction activity falls
under Entry 54 of the List II involving
intra-State purchase of goods and the
power to levy cess by invoking residuary
under Entry 97 would not be available to
the Parliament.

The High Court further held that the
constitutional validity of the Act; also the
competency of Parliament to enact the Act
under Entry 97/List I/Seventh Schedule
has already been upheld by the Honble
Supreme Court in Dewan Chand Builders and
Contractor v Union of India & ors {(2012) 1
SCC 101; AIR 2011 SC (Supp) 707}.
Validity of Sec. 3. The High Court upheld
Section 3 also which stipulates that the Central
36
Government may notify Cess not exceeding

2% but not less than 1% of cost of construction
incurred by an employer. The Cess is to be
deducted at source by the employer and paid
to the Board for welfare activities.
Reg. Rule 3. Cost of construction. No
ambiguity was found in Rule 3 also which
clearly defined the cost of construction as
under:
Rule 3. Levy of Cess. For the purpose

of levy of Cess under sub-section (1) of
Section 3 of the Act, cost of construction
shall include all expenditure incurred
by an employer in connection with the
building or other construction work but
shall no include
-cost of land;
-any compensation paid or payable

to a worker or his kin under the
Workmens Compensation Act, 1923.
Cess defined Difference between Cess and

Tax. The High Court held that the Cess is
levied to augment funds for the Welfare Boards
for undertaking social security schemes and
for welfare of construction workers. The High
Court relied on the Supreme court judgment
in Dewan Chand Builders and Contractors v
UOI, wherein the term Cess was elaborated
as under:
28. On the basis of the above

considerations, this Court in the Hingir
Rampur case (AIR 1961 SC 459) examined
the scheme of the Act impugned in that
case in depth and opined that the primary
and the principal object of the Act was
to develop the mineral areas in the State
and to assist in providing more efficient
and extended exploitation of its mineral
wealth. The Cess levied did not become
a part of consolidated fund and was not

subject to appropriation in that behalf.
It went into a special fund earmarked
for carrying out the purposes of the
Act and thus, its existence established
a correlation between the Cess and
the purpose for which it was levied,
satisfying the element of quid pro quo
in the scheme. These features of the Act
impressed upon the levy the character of
a fee as distinct from a tax.

The High Court further relied upon the
Constitution Bench of Supreme Court in State
of W.B. v Kesoram Industries Ltd & ors (2004)
10 SCC 201 wherein the object, purposes and
characteristics of Cess were further highlighted
in Para 146 of the judgment as under:
146. .The term cess is commonly

employed to connote a Tax with a purpose
or a tax allocated to a particular thing.
However, it also means an assessment or
levy. Depending on the context and purpose
of levy, cess may not be a tax; it may be a
fee or fee as well. It is not necessary that
the services rendered from out of the Fee
collected should be directly in proportion
with the amount of Fee collected. It is
equally not necessary that the services
rendered by the Fee collected should
remain confined to the person from whom
the fee has been collected. Availability
of indirect benefit and a general nexus
between the persons bearing the burden
of levy of fee and the services rendered
out of the fee collected is enough to
uphold the validity of fee charged.

The Division Bench summarized their
conclusions as under:
37. To summarize our conclusions as
under:-
Following the ratio of the judgment

of Honble Supreme Court in Dewan
Chand Builders and Contractor v Union
of India & ors {(2012) 1 SCC 101; AIR
2011 SC (Supp) 707) we hold that the
Parliament has legislative competence to
enact the BOCWW Cess Act. Rule 3 of the
BOCWW Cess Rules is not ultra vires the
BOCWW Cess Act and Article 246 of the
Constitution of India and levy of cess at
the rate of 1% on the cost of construction
is neither arbitrary, nor excessive. There
is no arbitrariness in the Notification no.
S.O. 2899 dated 26 .9.1996 issued by the
Central Government, by which cess at
the rate of 1% of the cost of construction
incurred by the employer to be levied and
collected for the purpose of the BOCW
(Regulation of Employment and Conditions
of Service) Act. There is no arbitrariness
or unreasonableness in the levy of cess at
the rate of 1% of the cost of construction
incurred by the petitioner company.
The writ petition was accordingly dismissed.

Jharkhand
High
Court:
Abhijeet
Hazaribagh Toll Road Ltd. v. Union of
India & ors, 2014 Lab IC 4115 (Jhar -DB).
3.8 Transgender Freedom to choose sexual

identity.
Constitution of India, Article 14 15, 16,
19(1) (a) and 21
(i) In Constitutional frame work, law and
jurisprudence, there are only two sexes
i.e. Male or Female; and there is no law in
place to recognize transsexual or third sex
or transgenders.
37
(ii) A transsexual has the right to select

his/her sex; forcing him/her to accept the
identity of a transsexual will surely be an
infringement of the rights guaranteed under
Articles 14, 15, 16, 19(1)(a) and 21 of the
Constitution of India.
(iii) Services of a transgenderwoman constable
cannot be terminated on the ground that she
revealed her sex as female; specially when
she was born and she also identified her as
female throughout her life.
to which India is a party; and after 64 years of

coming into force of the Constitution, which
guarantees a bulk of fundamental rights, which
includes non-discrimination on the basis of sex;
right to equality and equal protection of laws;
freedom of speech and expression; and right to
life including right to privacy. The transsexuals
are the neglected lot for no fault on their part.
The High Court also held as under;
18. All these years, the courts have been

called upon to deal with the laws relating
to males and females and adjudicate
upon issues without there being any legal
definition for these terms. But the Courts in
India have been successful in enforcing the
laws relating to the terms such as male
and female. man and woman and
son and daughter. All these statutory
laws and the customary laws have
recognized only male sex and female sex
and accordingly applied both civil laws
as well as penal laws. But, unfortunately,
from the time immemorial, there is a third
sex and the people belonging to the third
sex have not been recognized and treated
as normal human beings with dignity.
19. People of third sex are called in several

names, like Transsexuals, Transgenders,
Hijras, Alis, Aravanis, Thirunangais, etc.
Facts: The facts of the case are really touching.

Petitioner, a sport woman won various medals
in sports. After passing her B. Sc., she was
appointed to the post of woman constable and
posted in Karur Distt of Tamil Nadu. During
the training, all women constables were sent
for medical examination to Government
Hospital and Medical College, Vellore in
Mar 2011. As there were some medical
doubts, her further examination was held at
Madras Medical College and Rajiv Gandhi
Government General Hospital, Chennai. The
expert medical opinion held her as under:
She is a Trans Gender by birth

On the basis of said medical report, her
services were terminated for following main
reason, i.e.

(i). Failure to disclose that the applicant

is a transgender and appearing under
Women Quota concealing this fact.
Before High Court: The petitioner challenged

her termination. The High Court held that the
transgenders or third sex also has the right to
live with dignity. The rights of transsexuals
are not adequately taken care off by the State
and the society, though we have successfully
crossed 66 years after the advent of the
Universal Declaration of Human Rights, 1948,
38

The High Court also relied upon the
historical judgment pronounced by the
Supreme Court in National Legal Services
Authority v Union of India and others (AIR
2014 SC 1863) wherein the Apex Court issued
certain directions in Para 129 of the judgment
to safeguard the interest of the transgenders
etc. To quote:
129. We, therefore, declare:
(1) Hijras, Eunuchs, apart from binary

gender, be treated as third gender for
the purpose of safeguarding their rights

under Part III of our Constitution and
the laws made by the Parliament and the
State Legislature.

(2) Transgender persons right to decide

their self-identified gender is also upheld
and the Centre and State Governments
are directed to grant legal recognition
of their gender identity, such as male,
female or as third gender.
(3) We direct the Centre and the State

Governments to take steps to treat them
as socially and educationally backward
classes of citizens and extend all kinds
of reservation in cases of admission in
educational institutions and for public
appointments.
(4) Central and State Governments

are directed to operate separate HIV
Sero-survelliance Centres since Hijras/
Transgenders face several sexual health
issues.

should seriously address the problems
being faced by Hijras/Transgenders such
as fear, shame, gender dysphoria, social
pressure, depression, suicidal tendencies,
social stigma, etc and any insistence for
SRS for declaring ones gender is immoral
and illegal.

should take proper measures to provide
medical care to TGs in the hospitals and
also provide those separate public toilets
and other facilities
(7) Central and State Governments should

also take steps for framing various social
welfare schemes for their betterment.

should take steps to create public
awareness so that TGs will feel that they

are also part and parcel of the social life
and be not treated as untouchables.

(9) Central and State Governments should

also take measures to regain their respect
and place in the society which once they
enjoyed in our cultural and social life.

Coming back to the facts of the case, the
High Court declared that the petitioner was a
female as she was born as a female. In medical
records, she was registered as a female. In her
birth certificate and family card, she was shown
as a female. She joined Girls Elementary
School and studied in Girls Higher Secondary
School and Women College. She was known
and fully regarded in society as a female. Her
gait, get up, gesture and demeanor were that of
a female. She actively participated in women
sports. The High Court further held as under:
40 Therefore, it is suffice for me

to hold that treating the petitioner as
not a female on the basis of medical
declaration that she is transsexual and
forcing her to accept the said sexual
identity will surely be an infringement
of the rights of the petitioner guaranteed
under Articles 14, 15, 16, 19(1) (a) and
21 of the Constitution of India. As I
have already pointed out, the petitioner
was born as a female, recognized by
the society as a female for all purposes,
Therefore, I hold that she is a female
in the legal parlance and thus she is
eligible for appointment as a Woman
Police Constable.

The High Court directed the respondents
to issue consequential order within a period of
six weeks permitting the petitioner to join duty
as Woman Constable with continuity of serve.
39
Madras High Court: I. Jackuline Mary v.

Superintendent of Police, Karur, 2014 Lab
IC 3875 (Mad)
3.9 Employees Compensation Act, 1923 v.

Motor Vehicles Act, 1988
& Anr, 2009 ACJ 2855: AIR 2013 SC 2262:

2013 AIR SCW 3941 wherein it was held that
the provisions of Motor Vehicles Act cannot be
imported into proceedings under the WC Act
and allowed compensation. To quote:
(i) The defences which are available to an

insurer under the Motor Vehicles Act, 1988
cannot be raised in proceedings under
Workmens (Employees) Compensation
Act, 1923 as proceedings under both Acts
are different except specifically permitted.
(ii) The insurance companies should not
mechanically blame the Tribunals/ Workmen
Compensation Commissioner on issues
settled by the Apex Court. Cost of Rs. 10,000/imposed in addition to compensation.
FACTS: The undisputed facts of the case are
that an auto driver met with an accident and
died during and in the course of employment.
The employer-transporter had an insurance
policy from United India Insurance Co. Ltd,
which exonerated the employer from payment
of any compensation under the Workmens
Compensation Act, 1923 (now Employees
Compensation Act, 1923) for five persons. The
dependents of the deceased filed application
under the WC Act before W.C. Commissioner.
The transporter abstained from proceedings as
he had the insurance policy. The insurer on the
other hand pleaded that the driver did not have
the valid driving licence and was not wearing
the batch etc at the time he met with an accident.
This plea was based on the provisions of Motor
Vehicles Act, 1988. The WC Commissioner
rejected the averments of the Insurance
Company following the dicta laid down by the
Supreme Coot in the case of Branch Manager,
National Insurance Company v Venkatan
40
16. When the claimant having chosen the

forum under the 1923 Act for the purpose
of obtaining compensation against his
employer, the insurance company cannot
now fall back upon the provisions of the 1988
Act therefor, to raise the defences available
under the Motor Vehicles Act, inasmuch as
the proceedings laid down under both Acts
are different save and except those which
are covered by section 143 thereof.
Before High Court: Aggrieved by the order

of WC Commissioner, the insurance Company
filed writ petition before Madras High Court.
The Madras High Court upheld the order of
WC Commissioner and fired the insurance
company for indulging in unnecessary litigation
specially when the issues had already been
settled by the Supreme Court. The judgments
of Supreme Court were binding on all Courts/
Tribunals. The High Court also imposed a cost
of Rs. 10000/- on the company for protracted
litigation and ordered to pay compensation
within two weeks. To quote:
7. .While dismissing the appeal, this

Court deems it fit to observe that decisions
of the Honble Apex Court is (are) binding
on all Courts and Insurance Companies,
who are parties to the claim petitions,
arising out of similar set of facts, should not
mechanically file appeals, brushing aside
the principles of law or the ratio decidendi,
in the reported judgments. When the claims
tribunals/ Courts are mandated to apply a
decision of the Apex Court to the facts of
a case, to arrive at a final determination
of the rights and if the decision of the

claims tribunals are adverse to the interest
of the insurance companies, they must in
categorical term explain as to how the
decision of the Honble Apex Court is not
applicable to the case, on which an adverse
order has been passed. Without doing
so, the Insurance companies, who have a
battery of lawyers, should not file appeals
mechanically blaming the tribunals that
they have erred in law. This attitude of
the insurance company in protracting
payment of compensation due and payable
to the legal representatives cannot be
appreciated. While dismissing the appeal as
devoid of merits, this Court is constrained
to award cost of Rs. 10,000/- to be paid
by the United India Insurance Company
Limited, Dharapuram, to the respondents
in addition to the compensation amount
determined, within two weeks from the
date of receipt of copy of this order.
Madras High Court: M/s. United India
Insurance Co. Ltd., Dharapuram v. Tmt.
Pushpathal & others, 2014 Lab IC 4465
(Mad)
3.10 The Persons with Disabilities (Equal

Opportunities, Protection of Rights and
Full Participation) Act, 1995
(i) Human right of Persons with Disabilities.
A Welfare State is bound to protect the
welfare of physically challenged persons
under Disabilities Act, as they got disability
by birth or by some accident.
(ii) The request from persons with
disabilities for choice of place of posting be
considered and to the extent feasible, they
may be retained in the job, where their

service could be optimally utilized.
FACTS: M/s. Pondicherry Society of
Education, Puducherry was running six
colleges in Pondicherry. A 100% visually
challenged person was working as an Assistant
Professor and HOD, English in a College,
namely Kasturba College for Women,
Villianur, Puducherry. This place was 9 KMs
from his house. He was transferred to another
college i.e. Rajiv Gandhi Arts and Science
College, Thavalakuppam, Puducherry, which
was 18 KMs from his residence. The employee
challenged his transfer stating that he used to
travel to the old college with the help of his
colleague who was living close to his house.
His performance was always appreciated. He
also alleged malafide in his transfer stating
that the management was under the impression
that he was instrumental in giving complaint
of sexual harassment by one lady employee.
Before Single Judge. The Society defended
their action on the ground that he was male
member of faculty so he had to be transferred
from the female college. Further it was a
normal transfer and there was no malafide etc.
The Single Judge also accepted the averments
of Society that the employee was maintaining
a car and had employed a driver. He used to go
to college in his own car. If he could drive 9
Kms then he can also drive 18 KMs from his
residence. The single Judge considered it as an
incident of service and dismissed the petition.
challenged the order of Single Judge as well as
his transfer. The Division Bench viewed it as a
case of protection of persons with disabilities.
It relied on DOPT Office Memorandum dated
31 Mar 2014 which stated that the practice of
considering choice of place of posting in case
of persons with disabilities may be continued;
41
and to the extent feasible, they may be retained

in the same job, where their service could be
optimally utilized. The Division Bench also
did not accept the plea of the management that
he had to be transferred from women college
because other male teachers were still working
in the said women college.

The Division Bench further observed that
by the transfer of a 100% visually challenged
person, his working had been affected. It was
further held as under:
19. In a Welfare State, the persons

vested with responsibilities are bound
to protect the welfare of physically
challenged persons, as they got disability
by birth or by some accident and the said
duty is recognized not only under Act 1/
2006*, but also as a human right. The
inaction on the part of second respondent
in not considering the representation of
the appellant seeking transfer to the third
respondent college shows the defiant and
insensitive attitude of second respondent.
Hence this Court is inclined to interfere
with the order of transfer dated 25.11.2013,
which was upheld by the learned single
Judge by its order dated 27.6.2014.
*The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full
Participation) Act, 1995 (Act 1 of 1996)
Madras High Court: D. Ramkumar v.
Pondicherry Society for Higher Education
& ors, 2014 Lab IC 4475 (Mad-DB)
3.11 Disciplinary proceedings: Reasons for

recording findings.
(i) An enquiry report in a quasi-judicial
enquiry must show the reasons for the
42
conclusion. It cannot be ipse dixit of the

Enquiry Officer. It has to be a speaking order
in the sense that conclusion is supported by
reasons.
(ii) If a finding of guilt recorded in
departmental enquiry by the Enquiry Officer
is based on no evidence or is based on such
material which cannot be legally accepted
as proper evidence, then such a finding is
perverse and Courts can intervene.
Facts: A respondentan Ayurvedic Chikitsa
Adhikari was charge-sheeted for single article
of misconduct. i.e. misusing his position by
procuring two forged documents for managing
compassionate appointment for his daughter.
A preliminary enquiry was conducted in which
nothing was observed against the officer.
However, one witness did not state anything
against the charged officer in preliminary
enquiry which raised suspicion against the
officer. Thus, in the regular enquiry, he
changed his stand against the employee. The
charges were held to be proved. The matter
was referred to Public Service Commission
who recommended for imposition of penalty
of censure on the officer. The disciplinary
authority disagreed with the recommendation
of Public Service Commission and dismissed
the employee without any cognate evidence
on record.
Before Single Judge of High Court: The
Officer challenged the penalty mainly on
three grounds, i.e. that disciplinary authority
imposed a penalty of dismissal against the
recommendation of Service commission which
recommended penalty of censure; (ii) the
proceedings were not held as per rules and (iii)
the findings of IO were perverse. The Single
Judge held that the employee was penalized
only on suspicion there was no evidence on
record and ordered his re-instatement with

50% back wages.
5 ..It is well settled that a disciplinary

enquiry has to be a quasi-judicial enquiry
held according to the principles of natural
justice and the Enquiry Officer has a duty to
act judicially. The Enquiry Officer did not
apply his mind to the evidence. Save setting
out the names of the witnesses, he did not
discuss the evidence. He merely recorded
his ipse dixit that the charges are proved.
He did not assign a single reason why the
evidence produced by the appellant did
not appeal to him or was considered not
creditworthy. He did not permit a peep into
his mind as to why the evidence produced by
the management appeal to him in preference
to the evidence produced by the appellant.
An enquiry report in a quasi-judicial enquiry
must show the reasons for the conclusion. It
cannot be ipse dixit of the Enquiry Officer. It
has to be a speaking order in the sense that
conclusion is supported by reasons. .
12. Even though Shri Rahul Jain had

argued that the Writ Court is not entitled to
analyze the evidence and record a finding
which amounts to exercising the jurisdiction
of Appellate Authority, but we are not
inclined to accept such a contention. If a
finding of guilt recorded in departmental
enquiry by the Enquiry Officer is based on
no evidence or is based on such material
which cannot be legally accepted as proper
evidence, then such a finding is perverse
finding and any action taken on the basis of
such a perverse finding is in violation to the
principles of natural justice.
6. Where a disciplinary enquiry affects

the livelihood and is likely to cast a stigma
and it has to be held in accordance with the
principles of natural justice, the minimum
expectation is that the report must be a
reasoned one. The Court then may not enter
into the adequacy of evidence. But where
the evidence is annexed to an order sheet
and no correlation is established between
the two showing application of mind, we
are constrained to observe that it is not an
enquiry report at all. Therefore, there was
no enquiry in this case worth the name
and the order of termination based on such
proceedings disclosing non-application of
mind would be unsustainable.
The High Court in support of their ruling relied

upon the Supreme Court judgment in the case
of Anil Kumar v Presiding Officer & ors, AIR
1985 SC 1121 wherein it was held as under: _

The High Court upheld the judgment of
single judge that the charges cannot be proved
only on the basis of suspicion. There was no
material to show that charged officer misused
Before Division Bench: The State challenged

the judgment of Single Judge before the
Division Bench of the High Court and justified
the findings of IO and contended that the
charges were legally proved. The Division
Bench after having gone through the record
also observed that the daughter of charged
officer got compassionate appointment as
per policy and scheme as applicable. While
seeking appointment two documents i.e. one
affidavit and a certificated are said to be forged.
It was alleged that the employee misused his
position in getting these two forged documents.
The Division Bench did not observe any
contradiction in the findings of Single Judge.
It was also submitted that writ Court
(Single judge) had no jurisdiction to
appreciate and analyze the evidence. This
is the main ground on which this judgment
lays stress. The High Court refused to accept
this averment and held as under:
43
or after passing of this Act and whether

such contract is express or implied,
oral or in writing, but does not include
any person working in the capacity of
a member of the Armed Forces of the
Union: and any reference to a workman
who has been injured shall, where the
workman is dead, include a reference to
his defendants or any of them.
his official position in getting two documents

or getting compassionate appointment for his
daughter.
MP High Court: State of Madhya Pradesh &
ors v. B.P. Garg, 2014 Lab IC 4491 (MP-DB).
3.12 Employees Compensation Act, 1923.

Manufacturing process. A cook engaged on
daily wages for making food in kitchen of boys
hostel of school was entitled to employees
compensation as cooking of food comes within
the definition of manufacturing process.
Workman. If a manufacturing process
(cooking of food) takes place in the hostel
of school, a person working in that portion
of the school would be a workman
Facts: Respondent was employed as a Cook
on daily wages in Boys Hostel of Takarjala
School. While on duty, a group of extremists
came inside the hostel and opened fire. He got
bullet injury. He claimed compensation and
the Employees Compensation Commissioner
awarded compensation of Rs. 2, 15,300/-.
Before High Court: The State of Tripura
challenged the award of Commissioner
on the grounds that neither the respondent
was a workman u/s 2(n) of the Act nor any
manufacturing process was carried on in the
premises of boys hostel of the school. The
definition of workman (as was in force in WC
Act, 1923) read a under:

44
2(n). workman means any person

who is(ii) employed in any such capacity as
is specified in Schedule II, whether the
contract of employment was made before
(Editors note. The definition of

workman u/s 2(1) (n) was substituted by
the definition of employee u/s 2(1) (dd)
of the Act w.e.f. 18 Jan 2010. The cause
of action in present case took place prior
to 2008 as appeal was admitted by the
High Court on 08 Aug 2008)
The respondent on the other hand contended

that he was a workman within the meaning of
Schedule II u/s. 2(1) (n) which read as under:

(ii) Employed, otherwise than in a clerical

capacity, in any premises wherein or within
the precincts whereof a manufacturing
process as defined in clause (k) of section
2 of the Factories Act, 1948 (68 of 1948),
is being carried on, or in any kind of work
whatsoever incidental to or connected
with any such manufacturing process or
with the articles made whether or not
employment in any such work is within
such premises or precincts, and steam,
water or other mechanical power or
electrical power is used.
(Editors note. The above definition was

also amended and the words otherwise
than in a clerical capacity were omitted
w.e.f. 18 Jan 2010)

The High Court approved the averments
of the respondent-employee and held that the
employee was engaged in the manufacturing
process as making of food amounted to
manufacturing process. It was not necessary

that a person should be employed in a factory
for claiming benefits under the Act. The High
Court held as under:
7.The canteen of the boys hostel is

a place where manufacturing process in
done and in this behalf, reference may be
made to the judgment of the Apex Court
in Indian Petrochemicals Corporation Ltd
and another v Shramik Sena and others,
(AIR 1999 SC 2577). Merely because
the school is not a factory does not mean
that the claimant is not a workman. If a
manufacturing process is taking place in
the school, a person working in that portion
of the school would be a workman. In the
kitchen, manufacturing takes place, and,
therefore, in my opinion, the claimant was
a workman and entitled to compensation.
The writ appeal was accordingly dismissed.

Tripura High Court: State of Tripura and
others v. Shyam Datta & another, 2014 Lab
IC 3932 (Tripura)
3.13 U.P. Industrial Disputes Act, 1947.

Back wages. Where an awards is passed
for reinstatement with back wages, the
term back wages does not include Bonus,
unless the same is specifically stated in the
award.
Facts: A workman employed in irrigation
department of the then State of U.P. was
retrenched from service on 11 May 1990.
An award was passed by Industrial Tribunal
under U.P. Industrial Disputes Act, 1947
directing his reinstatement with wages and
allowances. The award was implemented and
he was paid wages and allowances but not
Bonus. Aggrieved by non-payment of Bonus,

he filed writ petition for grant of bonus.
Before High Court: The petitioner contended
that as the Industrial Tribunal has allowed him
reinstatement with wages and allowances, he
was entitled to bonus also. The respondent on
the other hand contended that the term wages
as it appear in the Industrial Disputes Act,
1947 as well as U.P. Industrial Disputes Act,
1947 does not include bonus. The employee
was thus rightly not granted bonus. Thus the
short question before the High Court was
whether the petitioner was eligible for grant
of bonus on his re-instatement with wages
and allowances.

The High Court observed that the as
the definition of wages excludes the term
bonus; the bonus has an absolutely different
connotation and meaning. The High Court did
not find any merit in the averment of petitioner
and held as under:
The Honble Apex Court in Hamdard

(Wakf) Laboratories v Dy. Labour
Commissioner & others, reported in
(2007) 5 SCC 281; (AIR 2008 SC 968)
has held that the amount of back wages
has to be paid to the employee on the
basis of award, which has been given in
his favour and the award of wages and
allowances does not include bonus, unless
specifically stated in said inter alia.
The High Court held that the bonus was not

payable to the petitioner because of definition
of wages and the aforesaid ruling of the
Supreme Court.
Uttrakhand High Court: Pramod Kumar
Sharma v. State of Uttrakhand & ors, 2014
Lab IC 4216 (UK)
45

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Awards Digest: Journal of Labour Legislation

[Vol. XXXXI-1-4, January-April, 2015]

Regulatory Framework for Private Placement Agencies in India

Decisions of the Supreme Court

Nand Kumar v State of Bihar, 2014 Lab IC 4088 (SC)

Ved Prakash Tiwari v U.P. Co-operative Institutional Service Board,

Life Insurance Corporation of India and ors v S. Vasanthi, 2014 Lab IC

Raghubir Singh v General Manager, Haryana Roadways, Hissar, 2014 Lab

Decisions of the High Courts

Chief Executive Officer v Chandrika Bai, 2014 Lab IC 3697 (Chh)

P. V. Kumar v Central Industrial Security Force & another, 2014 Lab IC

High Court of Gujarat v State of Gujarat, 2014 Lab IC 4441 (Guj-DB)

I. Jackuline Mary v Superintendent of Police, Karur, 2014 Lab IC 3875

Granting of back wages. The reinstatement of an employee, on the finding of a competent

Employees Compensation Act, 1923 v. Motor Vehicles Act, 1988

REGULATORY FRAMEWORK FOR PRIVATE

AWARDS DIGEST: Journal of Labour Legislation [Vol. XXXXI-1-4]

Private Employment Agencies Convention 1997 (No. 181)

V.V. Giri National Labour Institute

AWARDS DIGEST: Journal of Labour Legislation [Vol. XXXXI-1-4]

4 Regulating Employment Agencies: A Cross Country Perspective

V.V. Giri National Labour Institute

5 Existing Regulatory Framework in India

As mentioned in the Delhi Shops and Establishment Act 1954

AWARDS DIGEST: Journal of Labour Legislation [Vol. XXXXI-1-4]

V.V. Giri National Labour Institute

AWARDS DIGEST: Journal of Labour Legislation [Vol. XXXXI-1-4]

V.V. Giri National Labour Institute

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V.V. Giri National Labour Institute

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2. Decisions of the Supreme Court

7. ...In fact, to out query to the

V.V. Giri National Labour Institute

v Sahodar Prasad Mahto, AIR 2010 SC 3515

As noted supra, a time has come to

being annexed without even indicting as

2.2 Regularization of daily wagers

(i) Appointment on daily wage basis is

AWARDS DIGEST: Journal of Labour Legislation [Vol. XXXXI-1-4]

claim to permanency has to be adjudged

19. Therefore, considering the facts of

47. When a person enters a temporary

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also be held that the State has held out

20.. It cannot be said that the status

22. . Appointment on daily wage basis

Disciplinary proceedings cannot be initiated

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could be curtailed in case the misconduct

7. In view of the absence of such a

Averment by employer. The employer

that in case the misconduct was proved, any

9. Once the appellant retired from service

2.4 Judicial review of penalty imposed

V.V. Giri National Labour Institute

(a). Recovery of loss to the Corporation of

Employer placed reliance on Supreme Court

Before Single Judge. The Single judge held

71. Thus, from the above principles and

The Supreme Court accepted the averments of

12. We are of the opinion that the