Labour & Employment Laws - Newsletter | March 2023

This labour & employment law newsletter provides a brief summary of the developments and updates in the month of March, 2023 through judgments, notifications, circulars, and other updates in the labour & employment sector in India.

Management's failure to comply with Section 25F of the Industrial Disputes Act,1947 (“I.D. Act”) makes the termination of the workman unjustified.

The High Court of Delhi while considering a writ petition had observed that even though the management was right in not allowing the workman to resume work but the act of termination of the workman without adhering to the mandatory provision of Section 25F of the I.D. Act would be a violation of law as there is no dispute to the fact that the Respondent had worked for 240 days in service. The Hon’ble High Court held that in view of the violation of Section 25F of the I.D. Act, the workman is entitled to compensation in lieu of reinstatement.

[M.C.D. v. Ravinder Kumar 2023/DHC/001516]

It is the applicant who is obliged to explain the delay and not the Authority or the Court

Jammu & Kashmir High Court while deciding a petition concerned with the Employees’ Compensation Act, 1923 (“E.C. Act”) held that creation of an authority under special legislation cannot be a reason, much less sufficient, to condone the delay and it is the applicant who is obliged to explain the delay and not the authority or the Court, as the case may be, to make out a case for condonation of delay. It was held that no claim for compensation can be entertained by it under the Act unless the claim is preferred within two years of the occurrence of the accident within the meaning of sub-section (1) of Section 10 of the Act.

[Union Of India v. Assistant Labour Commissioner & Ors. OWP No.542/2019 - decided on 01.03.2023]

Once the delinquent employee admits his guilt, he cannot be allowed to turn back and plead violation of the principles of natural justice.

The High Court of Punjab & Haryana while deciding a Writ Petition held that employees terminated on the ground of self-admitted misconduct cannot challenge termination for non-holding of inquiry proceedings. The High Court held that to say that despite the petitioners having admitted their misconduct, still the inquiry was required to be held cannot be accepted.

[Kuldeep Singh v. Shiromani Gurudwara Parbhandhak Committee CWP No.27281 of 2017]

Once the employer has not followed the statutory obligation, then the acceptance of the retrenchment amount would not be an estoppel for the workmen to challenge the order of retrenchment.

The High Court of Jammu & Kashmir and Ladakh recently held that if an employer fails to follow the statutory obligations set out in Section 25-F of the Industrial Disputes Act 1947, the principle of estoppel cannot be used against an employee who had accepted compensation while challenging his retrenchment order. It was held that once an act prescribed under any statute is not done in accordance with the conditions prescribed for its performance, then the doer of the said act cannot derive any benefit of that act.

[India Tourism Development Corporation Limited & Anr vs. Fayaz Ahmad Sheikh & Ors. LPA No. 163/2022 - decided on 10.03.2023]

A termination order, even in the simplest form, can still be stigmatizing and the Court can invoke the doctrine of piercing through the veil

The High Court of Jammu & Kashmir and Ladakh, while relying upon the Apex Court’s judgment in State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234, held that if an aspersion is cast on the character of a person, it is to be considered termination by way of punishment, even if the person claiming there under, is a probationer. The Court held that the court can’t overlook the fact that merely because an order is worded in the simplest form, it can’t be stigmatizing. In such cases, the doctrine of piercing through the veil is to be applied.

[Rokade Santhosh Sandashiv & Anr. vs. Union of India & Anr. SWP No.1219/2011 - decided on 10.03.2023]

Women can avail of maternity benefits under the Maternity Benefit Act of 1961 (“Act”) even post-delivery

The Allahabad High Court reiterated the legal position that the maternity benefit can be extended even after the birth of a child. It was held that the same is apparent from the perusal of the Preamble of the Act, Section 5 (1), third proviso to sub-section 3 of Section 5 and also sub-section 4 of Section 5 of the Act.

[Saroj Kumari vs. State of Uttar Pradesh and Others. Writ - A No. - 2211 of 2023 - decided on 14.03.2023]

Haryana Government notified certain conditions for employing women employees in various establishments including IT establishments during night shifts

The Haryana Government laid down certain conditions for employing women employees during night shifts with respect to their security, safety and to safeguard the interest of women employees in various establishments including included IT, ITeS, Banking establishments, three-star or above hotels, etc. registered under the Punjab Shop and Commercial Establishments Act, 1958 in the State of Haryana and apply for the grant of such exemption under Section 28 of the said Act for employing women employees during night shifts in their respective establishments. As per the notification, it shall be the duty of the employer or other responsible person at the workplaces or institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution; statement of victim or prosecution of acts of sexual harassment by taking all steps required as per the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The notification can be accessed here.

PENCIL Portal for effective enforcement of Child & Adolescent Labour (Prohibition & Regulation) Act, 1986 (“CALPR Act”)

According to a press release dated 23.03.2023, the Government of India has developed an online portal PENCIL (Platform for Effective Enforcement of No Child Labour) for effective enforcement of CALPR Act. The portal also has a complaint corner for registering the complaint regarding childlabour. These complaints are dealt by the respective District Nodal Officers of the District. Besides, Ministry of Labour & Employment also carries out public awareness about child labour through its website and various social media handles.

The press release can be accessed here.

Code on Wages Act, 2019 (“Code”) stipulates government to review minimum rates of wages at an interval not exceeding five years

Providing an update on the Code, which is yet to be put into effect, a press release dated 23.03.2023 stated that Section 8(4) of the Code stipulates that the appropriate Government shall review or revise minimum rates of wages ordinarily at an interval not exceeding five years. It was further informed that the Government has taken measures for monitoring of compliance in respect of minimum wages rate, such as publicity of minimum rates of wages in the Chief Labour Commissioner websites, display of minimum rates of wages by contractors at work sites/places, display of minimum rates of wages by principal employers in their websites.