In VST Industries Ltd. v. VST Industries Workers Union, 2001 (88) FLR 548, the Hon’ble Supreme Court was considering the case of the appellate company, which was engaged in the manufacture and sale of cigarettes and which maintained a canteen in pursuance of statutory obligation under Section 46 of the Factories Act. The appellant company had managed the canteen on its own for sometime and thereafter introduced contract system and the contractors paid salary to the workmen employed in the canteen whereas the appellant company provided the building, furniture, fuel, electricity, water supply and other facilities. The contractor was engaged only for overseeing the preparation and service of food items, whereas the quality and quantity of food items and their rates were controlled by the Management of the Company. The employees of the canteen filed a writ petition for their regularization, which was allowed by the Writ Court and the judgment was affirmed by the Division Bench of the Hon’ble High Court, which held that the employees of the canteen were actually employees of the company and entitled to the same benefits as other regular employees. M/s NTPC Ltd. v. Presiding Officer, 2018 (157) FLR 263.
Tag Archives: Management
Abandonment and Termination are both positive acts, with the former requiring positive intent, on the part of the workman, not to work, and the latter requiring positive intent, on the part of the management, not to allow the workman to work. Requisite animus is the sine qua non in either case. There is, however, the subtle jurisprudential distinction between termination (at the instance of the employer) and abandonment, in that, in the former case, it would always be possible for the employer to unequivocally indicate, to the employee, that his services were no longer required and, therefore, that they stood “terminated”, whereas, in the latter case, often, the intention not to continue working for the employer has to be presumed from the conduct of the employee. It is only for this reason that a jural concept of “deemed abandonment” has evolved over a period of time. In Engineers India Ltd. v. Labour Court, (2018) 2 LLJ 442, examined the concept of “abandonment”, and the law that has evolved, by various pronouncements of the Supreme Court in that regard. Certain guiding principles on the issue of abandonment as culled out in Engineers India Ltd. v. Labour Court, (2018) 2 LLJ 442 are as under:
- Intention, or animus, to abandon, is the necessary sine qua non, for any case of abandonment to be said to exist. In the absence of intention, there is no abandonment.
- Whether the intention to abandon exists, or not, is a question of fact, to be determined in each case.
- Termination, or removal from service, is a positive act of the employer, per contra, abandonment is a positive act of the employee.
- Any evidence, to indicate that the employee or workman, desired to join duty, but was prevented from doing so, would, by itself, militate against any presumption of “abandonment”.
In each case, the onus, to prove the termination, or abandonment, had taken place, would be on the party so contending. Dev Narayan v. Management, 2018 (158) FLR 255.
In Bombay Dyeing and Manufacturing Co. Ltd. v. R. A. Bidoo, 1978 (2) LLN 239 while dealing with the role of a supervisor, held that it contemplated a certain number of persons working under a supervisor. If a person is doing any work which does not require him to look after or inspect or examine the work of persons who are subordinate to him or working under him, such person cannot be said to be a supervisor. Supervision necessarily requires reference to persons working under a supervisor as against machines. Supervising a machine does not make him a supervisor. In National Engineering Industries Ltd. v. Shri Kishan Bhageria, 1988 Supp SCC 82, the Hon’ble Supreme Court had made a reference to its previous judgment in Burmah Shell Storage and Distribution of India v. Burmah Shell Management Staff Association, 1971 (22) FLR 11 and D.P. Maheshwari v. Delhi Administration, 1983 (47) FLR 477 observing that one should consider the main work that the person is required to do even though there may be other types of work carried out incidentally. That an accountant is supposed to sign the salary bills of the staff even while performing the duties of a clerk and that did not make him an employee in a managerial or administrative capacity and person concerned was held to be clerk. In D.P. Maheshwari v. Delhi Administration, 1983 (47) FLR 477, it was found that the main work should be such that a supervisor could bind the company to take some kind of decision on behalf of the company. Merely referring to the affairs of the company do not make him a supervisor. In Mcleod and Company v. Sixth Industrial Tribunal, AIR 1958 Cal 273, the Hon’ble Calcutta High Court considered the expressions “managerial”, administrative” and “supervisor” holding that the word “supervisory” was advisedly a loose expression with no rigid frontiers and would discourage too much sublety in trying to precisely define where supervision ends and management begins. Uday Shantikumar Dixit v. Larsen and Toubro Ltd., 2018 (158) FLR 239.
As per Article 30 of the Constitution of India all minorities based on religion or language have been granted the right to establish and administer educational institutions of their choice. The nature of right of a minority institution to establish and administer an educational institution has been the subject matter of consideration in various decisions of the Hon’ble Supreme Court. While the right to ‘establish’ an educational institution has been held to mean to bring into existence an educational institution, the word ‘administer’ means the right to manage and conduct the affairs of the institution. There is a freedom to choose the managing body, the Principal and the staff. There is also freedom to admit students of its own choice. However the right to administer is not an absolute right and there is requirement to comply with conditions of recognition and affiliation. The right to administer has been held not to include the right of mal-administer. The general rules and regulations relating to the conditions of service and tenure of teachers under the employment of minority institutions are required to be consistent with such rules and regulations as framed by the State. Applicability of the provisions of Article 30(1) of the Constitution to a minority institution would not make it immune from the operation of regulatory measures. The extent of regulations by the State is permissible in the matter of service conditions of employees but without interfering with the overall administrative control by the Management over the staff. Professor Manorama Prakash Khandekar v. State of Maharashtra, 2020 SCC Online Bom 471.
The freedom of the minorities institution in making selection and appointment against the vacancies in the institution has come to be considered in many cases by the Hon’ble Apex Court. In Manager, Corporate Educational Agency v. James Mathew, (2017) 15 SCC 595 it was held that the emerging position is that, once the management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) of the Constitution of India is absolute. Hari Om Yadav v. State of U.P., 2020 (1) AWC 940.
The provisions of the Civil Procedure Code are not applicable to Industrial Disputes Act. It does not mean that the principle of res judicata will not be applicable to cases involving industrial dispute. On the principle of res judicata, the Apex Court in the case of Bharat Barrel and Drum Manufcaturing Company Pvt. Ltd. v. Bharat Barrel Employees Union, (1987) 2 SCC 591 has held that a question which is once decided can never be re-agitated and the exceptions are classes of cases like disputes regarding wage structure, service conditions etc. which arise as circumstances change and new situations arise which may not be barred by the rule of res judicata. The principle object of the Labour Legislation is to bring a quietus to the dispute. The question as to whether a person was or was not an employee of the Management on the particular date is one which cannot be re-agitated in a subsequent case, if it has already been decided by the Industrial Tribunal of competent jurisdiction in an earlier case. Rajiv Gandhi ONGC (CON) Workers Welfare Association v. Government of India, 2016 (150) FLR 499.