Tag Archives: Workman

Abandonment and Termination – Are Both Positive Acts

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.

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Back Wages – Conduct of Concerned Workman

The Hon’ble Supreme Court in Novartis India Ltd. v. State of West Bengal, reported in (2009) 3 SCC 124, has held that merely because the dismissal from service has been held to be illegal would not result in automatic payment of back wages and the conduct of the concerned workman would also have to be examined. It was held as under:

            “There can, however, be no doubt whatsoever that there has been a shift in the approach of the Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. The burden of proof that he remained unemployed would be on the workman keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. The Hon’ble Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment etc.

            It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right. M/s Rathi Udyog Ltd. v. Presiding Officer, (2019) 2 UPLBEC 1093.

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Ingredients and Purpose of Section 17-B of Industrial Disputes Act, 1947

The three necessary ingredients for the application of Section 17-B of the Industrial Disputes Act, 1947 are (i) the Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court; and (iii) the workman should not have been employed in any establishment during such period.

It is apparent that Section 17-B of the Industrial Disputes Act was introduced for the purposes of mitigating hardship faced by the workman who had been reinstated but the reinstatement had been delayed on account of the contest laid by the employer before the High Court or the Supreme Court. It is also clear that Section 17-B of the Act, 1947 proposed to provide “payment of wages last drawn”. The object of introducing Section 17-B of the Act appears to ensure that a workman, in whose favour an award for reinstatement has been passed, is at least paid his last drawn wages. The purpose of introducing Section 17-B of the Act appears to be not to provide for a punitive measure or a disincentive for the employers to challenge the award passed by the Labour Court, but to mitigate the hardship faced by the workman on account of delays occasioned because of pendency of litigation before the High Courts and the Supreme Court. The Parliament in its wisdom, obviously thought it fit that the workman having succeeded in obtaining an award of reinstatement ought to be paid at least last wages that were drawn by him. It is also made a condition that for purposes of obtaining wages under Section 17-B of the Act, the employee should not be gainfully employed elsewhere. This object appears to be not to discourage an employer from assailing the award but to ensure that the workman who has prevailed before the Labour Court does not suffer for want of subsistence allowance for his sustenance. Management Committee v. Presiding Officer, 2016 (150) FLR 518.

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Industrial Dispute – Meaning of

The term “industrial dispute” connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression “dispute or difference” as used in the definition given under section 2(k) of the Industrial Disputes Act, 1947, therefore, means a controversy fairly definite and of real substance, connected with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.

To understand the meaning of the word “dispute”, it would be appropriate to start with the grammatical or dictionary meaning of the term:

“Dispute.—to argue about, to contend for, to oppose by argument, to call in question—to argue or debate (with, about or over)—a contest with words; an argument; a debate; a quarrel;”

Black’s Law Dictionary, 5th Edition, P. 424 defines “dispute” as under:

“Dispute.—A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined and in relation to which jurors are called and witness examined.”

Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Henc an “industrial dispute” cannot be said to exist until and unless the demand is made by the workman and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant. Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1.

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Workman – Accident and Injury

‘Accident’ and ‘Injury’ are distinct in cases where accident is an event happening externally to a man, eg., when a workman falls from the ladder and suffers injury. The less obvious cases of accident are strain causing rupture, bursting of aneurism, failure of muscular action of the heart, exposure to draught causing chill, etc. Such accidents can be called as internal accidents. In such cases, it is hardly possible to distinguish between the ‘accident’ and ‘injury’. The rupture is an accident, at the same time injury leading to death or incapacity at once or after a lapse of time. Thus in cases of internal accidents, “Accident” and “Injury” coincide. But the common factor in all cases of accident, whether internal or external is some concrete happening at a definite point of time and incapacity resulting from such happening. An accident happening to a person in or about any premises at which, he is for the time being employed for the purpose of his Employer’s trade or business shall be deemed to raise out of and in the course of employment.
At times accident need not be due to immediate cause or as a result of collusion or sudden mishap. Even a non-spontaneous injury resulting in death or causing injury to workman during the course or arising out of employment can also be termed as accidental injury.
The word ‘Injury’ includes physiological injury. The physiological injury suffered by a workman due mainly to the progress of a disease unconnected with employment, may amount to an injury arising out of and in the course of employment if the work which the workman was doing at the time of the occurrence of the injury contributed to its occurrence. The connection between the injury and employment may be furnished by ordinary strain of ordinary work if the strain did in fact contribute to or accelerate or hasten the injury. M.D., Karnataka State Road Transport Corporation v. Jayalakshmi, 2014 (142) FLR 978.

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