Whether employer is legally bound to pay transport facility/allowance to workers merely because other industries are also giving such allowance/facility?
No! Simply because the neighbouring industries are providing transport facility/ conveyance allowance to its employees does not create a legal obligation on you to also provide such facility or pay such allowance unless it has been agreed as term of employment or a part of settlement. However, if such demand is raised and referred for adjudication, then Tribunal has jurisdiction to adjudicate and grant such relief based on the practice followed by other industries having principle of industry cum region basis. S.C. in the case of Atic Industries Ltd. vs. Workmen, 1972 Lab IC 642 (SC); 24 FLR 196 has held that the principle that in a proper case the Industrial Tribunal can impose new obligation on the employer in the interest of social justice and can also involve the parties in a new contract has been accepted by this Court. There can be no doubt that an Industrial Tribunal has jurisdiction to make a proper and reasonable order in an industrial dispute. The Tribunal was justified in having regard to the practice obtaining in the region on the principle of region-cum industry when considering the claim of the workmen for payment of transport allowance. The foundation of the principle of region-cum-industry is that as far as possible there should be uniformity of conditions of service in comparable concerns in the industry in the region as that there is no balance, in the conditions of service between workmen in one establishment and those in the rest. The danger otherwise would be migration of labour to the one where there are more favourable conditions from those where conditions are less favourable. In this case the dispute was regarding dearness allowance, transport allowance and other demands between the company and its workers. In regard to transport allowance the Tribunal in its award directed the employers to pay 15 paise per day to workmen who lived more than five miles away from the place of work except on days when a workman was on leave. in doing so the Tribunal took into account the fact that in the same region a pharma company was paying transport allowance to its workmen and SC upheld the tribunal award.
What can be those circumstances, where not granting permission to employee to defend himself in enquiry through advocate may lead to invalidity of enquiry?
It is the matter of reasonableness and prejudice which is to be looked into and it is also based on facts and circumstances of each case. It is also to be guided by the relevant services/regulations/certified standing of the establishment. Core point is to be seen whether in the facts and circumstances of the case, denial of lawyer representation in disciplinary enquiry from workman has really caused prejudice to him. Though the employee has no right to be represented by lawyer in the absence of any such service rule as held by SC in the case of Bharat Petroleum Corporation Ltd. vs. Maharashtra General Kamgar Union and Others 1999 LLR 180; 1999 (81) FLR 358. But Karnataka HC in the case of G.V. Aswathanarayana vs. The Central Bank of India, 1993 LLR 535; 1993 (66) FLR 670 has held that when the charges against the employee run into 25 pages and several hundred documents are involved in the enquiry, the employee who is not legally trained to put up his case effectively in the enquiry without the help of a lawyer, the representation by a lawyer in the enquiry must be permitted. Karnataka HC in another case of Sri S. Jayarajan vs. Reserve Bank of India and Others, 1996 LLR 1055 has held that employee facing criminal trial should be permitted to be represented by a lawyer in the enquiry if there is likelihood of his dismissal from service. Yet in another case of N. Balasubramanian vs. Canara Bank Financial Services Ltd. 1996 LLR 995; 1996 (74) FLR 2047 Karnataka HC has again held that denial of representation by a lawyer in enquiry will not be justified when the charges are of serious consequences.
When a workman receives his retrenchment compensation without any dispute or protest, will he still be entitled to get re-employed in future if any vacancy arises?
Yes! Industrial Disputes Act has taken care of such protection provided to workman. Sec.25H is the answer. The legislature has given this right to workman that even after taking his retrenchment compensation, employer will have to provide the opportunity of re employment to such retrenched person in future If such vacancy arises. The Sec. says Where any workmen are retrenched, and the employer proposes to take into his employment any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for reemployment and such retrenched workman] who offer themselves for re-employment shall have preference over other persons. Section 25H of I.D. Act applies to cases where the employer has proposed to take into their employment any person to fill up the vacancies. It is at the same time, the employer is required to give an opportunity to the retrenched workman an offer him re-employment and if such retrenched workman offers himself for re-employment, he shall have preference over another person, who has applied for employment against the vacancy advertised. The object behind enacting Section 25H of the I.D. Act is to give preference to a retrenched employee over the other persons by offering them re-employment in the services when the employer takes a decision to fill up the new vacancies. Section 25H of I.D. Act is required to be implemented as per the procedure prescribed in Rule 78 of Industrial Dispute (Central) Rules,1957 which clearly provides that Section 25H of I.D. Act is applicable only when the employer decided to fill up the vacancies in their set up by recruiting persons. It provides for the issuance of notice to retrenched employee prescribed therein in that behalf. In order to attract the provisions of Section 25H of I.D. Act, it must be proved by the workman that- (i) he was the retrenched employee; (ii) his ex-employer has decided to fill up the vacancies in their set up and therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re-employment in the services. AP H.C in the case of B. Ashok vs. Chairman, Food Corporation of India; 1996 Lab IC 2808 has held that merely because the employee has accepted the retrenchment compensation, cannot be a ground to deny him the re-absorption. So employer cannot deny the re-absorption on the ground that the person does not have requisite educational qualification at the time re-employment because no technical skill is required for class IV post. S.C. in the case of Management of Barara Co-operative Marketing cum Processing Society Ltd. vs. Workman Pratap Singh decided on 2.1.2019 (CIVIL APPEAL No. 7 OF 2019 [Arising out of SLP (C) No. 17975 of 2014] has held that the workman who after challenging his termination receives the compensation from the employer as per court award cannot invoke Sec. 25H merely on the ground that some other workman has been regularized in the service by Employer. Court held that the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25H of the I.D. Act for claiming re- employment in the services.
Can woman employee who did not inform company about her pregnancy and apply for maternity leave, challenge her termination on this ground?
No! Because she has not served any notice of maternity leave. Termination if done after adopting procedural formalities should be held valid by the court in all probabilities. Delhi High Court in the case of Sunita Baliyan vs. Director Social Welfare Department, Government of NCT of Delhi, 2008 LLR 130 has held that maternity benefit will not be available even on delivery by a female employee since she has not given any notice either about her pregnancy or delivery and even the letter that too after 5 months did not mention about delivery. In the absence of any express termination by the management of the employee alleging that she has gone on maternity leave and was orally refused duties has been rightly rejected by the Labour Court.
Whether employer is legally bound to pay transport facility/allowance to workers merely because other industries are also giving such allowance/facility?
No! Simply because the neighbouring industries are providing transport facility/ conveyance allowance to its employees does not create a legal obligation on you to also provide such facility or pay such allowance unless it has been agreed as term of employment or a part of settlement. However, if such demand is raised and referred for adjudication, then Tribunal has jurisdiction to adjudicate and grant such relief based on the practice followed by other industries having principle of industry cum region basis. S.C. in the case of Atic Industries Ltd. vs. Workmen, 1972 Lab IC 642 (SC); 24 FLR 196 has held that the principle that in a proper case the Industrial Tribunal can impose new obligation on the employer in the interest of social justice and can also involve the parties in a new contract has been accepted by this Court. There can be no doubt that an Industrial Tribunal has jurisdiction to make a proper and reasonable order in an industrial dispute. The Tribunal was justified in having regard to the practice obtaining in the region on the principle of region-cum industry when considering the claim of the workmen for payment of transport allowance. The foundation of the principle of region-cum-industry is that as far as possible there should be uniformity of conditions of service in comparable concerns in the industry in the region as that there is no balance, in the conditions of service between workmen in one establishment and those in the rest. The danger otherwise would be migration of labour to the one where there are more favourable conditions from those where conditions are less favourable. In this case the dispute was regarding dearness allowance, transport allowance and other demands between the company and its workers. In regard to transport allowance the Tribunal in its award directed the employers to pay 15 paise per day to workmen who lived more than five miles away from the place of work except on days when a workman was on leave. in doing so the Tribunal took into account the fact that in the same region a pharma company was paying transport allowance to its workmen and SC upheld the tribunal award.
Can woman employee who did not inform company about her pregnancy and apply for maternity leave, challenge her termination on this ground?
No! Because she has not served any notice of maternity leave. Termination if done after adopting procedural formalities should be held valid by the court in all probabilities. Delhi High Court in the case of Sunita Baliyan vs. Director Social Welfare Department, Government of NCT of Delhi, 2008 LLR 130 has held that maternity benefit will not be available even on delivery by a female employee since she has not given any notice either about her pregnancy or delivery and even the letter that too after 5 months did not mention about delivery. In the absence of any express termination by the management of the employee alleging that she has gone on maternity leave and was orally refused duties has been rightly rejected by the Labour Court.
What can be those circumstances, where not granting permission to employee to defend himself in enquiry through advocate may lead to invalidity of enquiry?
It is the matter of reasonableness and prejudice which is to be looked into and it is also based on facts and circumstances of each case. It is also to be guided by the relevant services/regulations/certified standing of the establishment. Core point is to be seen whether in the facts and circumstances of the case, denial of lawyer representation in disciplinary enquiry from workman has really caused prejudice to him. Though the employee has no right to be represented by lawyer in the absence of any such service rule as held by SC in the case of Bharat Petroleum Corporation Ltd. vs. Maharashtra General Kamgar Union and Others 1999 LLR 180; 1999 (81) FLR 358. But Karnataka HC in the case of G.V. Aswathanarayana vs. The Central Bank of India, 1993 LLR 535; 1993 (66) FLR 670 has held that when the charges against the employee run into 25 pages and several hundred documents are involved in the enquiry, the employee who is not legally trained to put up his case effectively in the enquiry without the help of a lawyer, the representation by a lawyer in the enquiry must be permitted. Karnataka HC in another case of Sri S. Jayarajan vs. Reserve Bank of India and Others, 1996 LLR 1055 has held that employee facing criminal trial should be permitted to be represented by a lawyer in the enquiry if there is likelihood of his dismissal from service. Yet in another case of N. Balasubramanian vs. Canara Bank Financial Services Ltd. 1996 LLR 995; 1996 (74) FLR 2047 Karnataka HC has again held that denial of representation by a lawyer in enquiry will not be justified when the charges are of serious consequences.
When a workman receives his retrenchment compensation without any dispute or protest, will he still be entitled to get re-employed in future if any vacancy arises?
Yes! Industrial Disputes Act has taken care of such protection provided to workman. Sec.25H is the answer. The legislature has given this right to workman that even after taking his retrenchment compensation, employer will have to provide the opportunity of re employment to such retrenched person in future If such vacancy arises. The Sec. says Where any workmen are retrenched, and the employer proposes to take into his employment any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for reemployment and such retrenched workman] who offer themselves for re-employment shall have preference over other persons. Section 25H of I.D. Act applies to cases where the employer has proposed to take into their employment any person to fill up the vacancies. It is at the same time, the employer is required to give an opportunity to the retrenched workman an offer him re-employment and if such retrenched workman offers himself for re-employment, he shall have preference over another person, who has applied for employment against the vacancy advertised. The object behind enacting Section 25H of the I.D. Act is to give preference to a retrenched employee over the other persons by offering them re-employment in the services when the employer takes a decision to fill up the new vacancies. Section 25H of I.D. Act is required to be implemented as per the procedure prescribed in Rule 78 of Industrial Dispute (Central) Rules,1957 which clearly provides that Section 25H of I.D. Act is applicable only when the employer decided to fill up the vacancies in their set up by recruiting persons. It provides for the issuance of notice to retrenched employee prescribed therein in that behalf. In order to attract the provisions of Section 25H of I.D. Act, it must be proved by the workman that- (i) he was the retrenched employee; (ii) his ex-employer has decided to fill up the vacancies in their set up and therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking re-employment in the services. AP H.C in the case of B. Ashok vs. Chairman, Food Corporation of India; 1996 Lab IC 2808 has held that merely because the employee has accepted the retrenchment compensation, cannot be a ground to deny him the re-absorption. So employer cannot deny the re-absorption on the ground that the person does not have requisite educational qualification at the time re-employment because no technical skill is required for class IV post. S.C. in the case of Management of Barara Co-operative Marketing cum Processing Society Ltd. vs. Workman Pratap Singh decided on 2.1.2019 (CIVIL APPEAL No. 7 OF 2019 [Arising out of SLP (C) No. 17975 of 2014] has held that the workman who after challenging his termination receives the compensation from the employer as per court award cannot invoke Sec. 25H merely on the ground that some other workman has been regularized in the service by Employer. Court held that the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25H of the I.D. Act for claiming re- employment in the services.