LABOUR REGULATORY UPDATES

• Extension of closing hours under Himachal Pradesh Shops And Commercial Establishments Act, 1969

Notification issued by the Department of Labour and Employment – Government of Himachal Pradesh, No. Shram (A) 4-4/2017 dated 20th May 2023 regarding extension of closing hours of Shops under Himachal Pradesh Shops and Commercial Establishments Act, 1969

In supersession of previous notifications of this department regarding opening and closing hours and in pursuance of the provisions contained in section 9 of the Himachal Pradesh Shops and Commercial Establishments Act, 1969, the Governor of Himachal Pradesh is pleased to extend the closing hours of Shops and Commercial Establishments in the State of Himachal Pradesh.

The closing hours extended under the said Act from 9:00 P.M. to 11:00 P.M. with immediate effect, till 31-07- 2023, subject to applicability of other provisions of Act ibid and other applicable labour laws

• Implementation of ESI Act, 1948 under Section 1(3) in the entire area of 11 districts

As per the notification issued by Ministry of Labour and Employment with notification no.-S.O. 2244(E) dated 23rd May 2023 refers to the Implementation of ESI Act, 1948 under Section 1(3) in the entire area of 11 districts in the state of Bihar shall be effective from 01.06.2023

As per the provisions of the ESI Act, 1948 mentioned below shall come into force in all the areas of Arwal, Jamui, Kaimur, Khagaria, Kishanganj, Madhepura, Madhubani, Nawada, Purnia, Sheikhpura and West Champaran w.e.f. 01.06.2023 in addition to the already notified areas of the said districts, in the State of Bihar:

               (i)  sections 38 to 43 and sections 45A to 45H of Chapter IV;

               (ii)  sections 46 to 73 of Chapter V; and

              (iii)  sections 74, 75, sub-sections (2) to (4) of section 76, 80, 82 and 83 of Chapter VI.

• The Government of Chhattisgarh on May 19, 2023, issued an amendment to the Chhattisgarh Factories Rules, 1962

In exercise of the powers conferred by Section 112 of the Factories Act, 1948 (No. 63 of 1948), the State Government, hereby, makes the following further amendment in the Chhattisgarh Factories Rules, 1962, namely:-

In the said rules – Rule 53 shall be omitted.

• Rule 53 under Chhattisgarh Factories Rules, 1962 which specifies the following:

“White-washing, colour-washing of latrines and urinals – The walls, ceiling and partitions of every latrine and urinal shall be white-washed or colour-washed and the white-washing or colour washing shall be repeated at least once in every period of four months. The dates on which the white-washing or colour-washing is carried out shall be entered in the prescribed Register (Form. No. 7)

Provided that this rule shall not apply to latrines and urinals, the walls, ceilings or partitions of which are laid in glazed tiles or otherwise finished to provide a smooth, polished impervious surface and that they are washed with suitable detergents and disinfectants at least once in every period of four months.”

• The Chhattisgarh Rights of Persons with Disabilities Rules, 2023

Chhattisgarh Gazette notification issued by Department of Social Welfare  No. F7-58/2018/26 published on dated 22nd May 2023 regarding the rights and benefits of the persons with Disabilities.

In exercise of the powers conferred by sub-section (1) and sub-section (2) of Section 101 of the Rights of person with Disabilities Act, 2016 [No. 49 of 2016], the State Government, hereby, makes the rules may be called the “Chhattisgarh  Rights of Persons with Disabilities Rules, 2023.”

• The Telangana Shops & Establishments Act, 1988 to keep open on all the days of the year in Telangana State for a further period of three years w.e.f.16-06-2022 

Furtherance to the order no. G.O.Ms.No.24 previously issued on dated 25-07-2019 by Labour Employment Training & Factories (Labour) Department, the permission extended under the Telangana Shops & Establishments Act, 1988 to keep open on all the days of the year in Telangana State for a further period of three years w.e.f.16-06-2022

The Government of Telangana hereby extend the permission to all the Shops & Establishments as defined in section 2 (21) of Telangana Shops & Establishments Act, subject to the following conditions:-

The working hours of the employees shall be 8 hours per day and 48 hours in a week. Record of over time will be maintained in the Wages Register separately in respect of the employees who worked beyond normal working hours.

Every employee will be allowed to avail a Weekly Holiday as per the list exhibited (Form 24) at the main entrance of the shop on rotation basis.

If the employees are found working on any Holiday or after normal duty hours without proper indent of Over Time, the exemption granted will be liable for cancellation.

Working hours of the shop shall be between 9.00 A M. to 11.00 P.M.

In case of Women employees who are required to work beyond 8:30 P.M., transport arrangements are to be made to the women employees. A notice to this effect in Telugu and English shall be exhibited at the main entrance of the shop indicating the availability of transport.

All employees are to be provided with Appointment Letters and copy of the same will be furnished to the jurisdiction Inspector and acknowledgement shall be preserved in the shop for inspection at any time.

Visit Book shall be maintained exhibiting a copy of the exemption for verification by the Inspector for compliance with the conditions on exemption.

The exemption is valid for three (3) years only and subject to compliance with the conditions of exemption and also compliance with the welfare provisions applicable under various Labour Laws.

The wages for the employees shall be credited to their saving bank Accounts.

EPF & ESI deductions shall be implemented in respect of the eligible employees.

The Employer shall cooperate in implementing the “Duties of Inspection” under rule 28 of the Telangana Shops & Establishments Rules, 1990 especially with regard to the implementation of the conditions and also the provisions of other Labour Laws for the workers employed in their shops.

If any statutory violation is committed by the Employer of the Shop, the exemption will be cancelled before the sanction period.

The exemption will remain in operation for a period of three (3) years, subject to fulfillment of conditions as specified above and also subject to any orders I instructions issued from time to time in this regard.

AMENDMENT TO THE ANDHRA PRADESH LABOUR WELFARE FUND RULES, 1988

• The due date of payment of Enrolment Tax for the year 2023-24, From 30.04.2023 to 31.05.2023 has been extended under The Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976 

As per the notification in exercise of the powers conferred by section 34 of the Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976, the Government of Karnataka, hereby makes the following Order, to remove the difficulties

The aforesaid Extensions are officially published in the Gazette of Karnataka; this Order may be called the Karnataka Tax on Professions, Trades, Callings and Employments (Removal of Difficulties) Order, 2023.

It applies to all Industrial Establishments, Factories, Professions and those who are registered, and in respect of the person who stands enrolled before the commencement of the said year 2023-24, in the State of Karnataka

The above changes are inserted in the Act under respective Sections as under:

In section 6-A of the said Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:-

Provided further that for the month of April 2023, the statement shall be submitted on or before the 31st day of May 2023.

In section 10 of the said Act, in sub-section (2), the following provision shall be inserted, namely:-

Provided that for the financial year 2023-24, in respect of person who stands enrolled before the commencement of the said year, the payment of the amount of tax due shall be paid before the 31st day of May 2023.

• Employees’ Provident Fund Organization issued a circular to all CPFC’s Zonal office and RPFC’s/OIC’s Regional Office dated on 9th May, 2023 regarding Applications for Validation of Option / Joint Options – Deposit / Transfer of due contribution with interest into Pension Fund

This circular is continuation of the earlier instructions issued vide above circulars dated 29.12.2022, 05.01.2023, 25.01.2023, 20.02.2023 and 23.01.2023 regarding the Hon’ble Supreme Court judgment dated 04.11.2022 in in Sunil Kumar B. vs. Others.

• Calculation of Dues:

The dues will be calculated by the Field Office after the verification of wage details submitted by the employer(s) and taking care of following in the process:-

1. Each member/pensioner’s case shall be processed in a separate file, created in e-office with clear marking of the Application ID (system generated acknowledgement number for online application for validation/joint option).
2. In case of exempted establishments, the wage details for the entire period and the matching contribution should be available with the exempted establishments and consistent with the records of the Trust.

• Dues should be calculated month wise in the following manner:

8. 8.33% of employer’s share on higher pay (w.e.f. 16.11.1995 or the date the pay exceeds the wage ceiling; whichever is later) will be calculated as per records.
9. 1.16% of employer share on higher pay above Rs. 15,000/- p.m. (w.e.f. 01.09.2014) will be calculated as per records towards increased contribution.

iii.  All amounts already deposited Into Pension Fund shall be deducted from sum of 5 (i) and 5 (ii) above.

1. The Interest to be charged on dues as calculated above shall be the Interest earned by the members on their PF accumulations.
2. For un-exempted establishments, the interest shall be calculated at the rate declared under Para 60 of EPF Scheme, 1952.
3. For exempted establishments, the interest shall be calculated at the rate declared under Para 60 of EPF Scheme, 1952 or at the rate declared by the Trust of exempted establishment from time to time, whichever is higher, if any.

• Pensioner/member may be given up to 3 months time to deposit and to give consent for diversion dues to be communicated in the following manner:

• General Elections to the Karnataka Legislative, 2023 to the electors of the Karnataka State

The Government of Goa, vide notification No.2/2/2010-GAD-III/1727 dated 08/05/2023 hereby declares 10-May-2023 as a “Paid Holiday” being the polling day for the General Elections to the Karnataka Legislative, 2023 to the electors of the Karnataka State.

As per the notification in exercise of powers conferred by the explanation of section 25 of the Negotiable Instruments Act, 1881(Act 26 of 1881) delegated by Govt. of India, Ministry of home affairs New Delhi read with section 135B of representation of People Act,1951 the Govt. of Goa declares 10-May-2023 as a “Paid Holiday” being the poling day for the General Elections to the Karnataka Legislative, 2023 to the electors of the Karnataka State.

The aforesaid holiday shall be a “Paid Holiday” in addition to the holidays indicated in the Notification No.37/4/2022-GAD-III/3661 dated19/10/2022, published in the Official Gazette, Series II No.30 dated 27/10/2022, to the establishment as detailed below:

1. Industrial workers of the State of Goa;
2. Daily wage workers of the Government Departments and State Government Department;
3. Commercial and Industrial workers of private establishment in the State of Goa;
4. All private establishments;
5. Daily wage/Casual workers employed in any business, trade industrial undertakings or any other establishments.

• Employees’ Provident Fund Organization issued a notification on 3rd May, 2023 regarding additional contribution of 1.16% to be contributed those who are contributing EPS above the prescribed ceiling limit

Hon’ble Supreme Court had vide its Judgment, dated the 4th November, 2022, directed EPFO to clarify on additional contribution of 1.16% to be collected either from employees, employer or within the EPS board and clarification sought within 6months from the date of judgment.

EPFO clarified and it has been decided to draw 1.16% additional contribution within the overall 12% of the contribution of the employers into the provident fund.

Subsequently the contribution toward EPS shall be 9.49% (Existing 8.33% + 1.16% = 9.49%)

(in respect of members who have exercised joint option for contributing under the provisions of paragraph 11 of the Employees’ Pension Scheme, 1995 and who are found eligible, the employer’s contribution shall be nine and forty-ninth per cent. (9.49%) of the basic wages, dearness allowance and retaining allowance of each member by increasing one and sixteenth per cent. (1.16%) from the extant eight and one-third per cent. (8.33%); and

(ii) the increased contribution shall be applicable to basic wages, dearness allowance and retaining allowance to the extent such basic wages, dearness allowance and retaining allowance exceed fifteen thousand rupees per month)

This notification shall be deemed to have come into force on the 1st day of September, 2014.

• Extended Sickness Benefit and Temporary Disablement Benefit under ESIC Act, 1948

Online Cash Benefit Claim Submission and Processing by Branch office for Sickness Benefit, Extended Sickness Benefit and Temporary Disablement Benefit under ESIC

Deputy Director (benefit) with the approval of Director General, ESIC notified in letter No. N-11012/5/2023-BFT-II dated 02.05.2023 and directed to inform that:  

An online module for submission of claim request (cash benefits) through IP Portal has been developed which will facilitate the Insured Persons in filing claim for their cash benefits without the requirement of visiting their Branch Office.

A detailed procedures/workflow to be adopted while submission of claim for Cash benefits (Sickness Benefit, Extended Sickness Benefit and Temporary Disablement Benefit) and a User Manual has been issued.

It is also requested to direct Branch Office Managers to facilitate the IPs visiting their respective Branch Offices in filing online claims so that offline/ physical claim submission can be eliminated.

• The West Bengal State Tax on Professions, Trades, Callings and Employments Rules, 1979 the last date of filing return in Form-III for the Financial Year 2023 is extended

As per the notification date 27.04.2023 from directorate of commercial taxes and office of the commissioner of commercial taxes and profession tax, West Bengal has extended the last date of filing return in Form III, under section 6 of the West Bengal State Tax on Professions, Trades, Callings and Employments Act, 1979 read with rule 12 of the West Bengal State Tax on Professions, Trades, Callings and Employments Rules, 1979, for the year ending on the 31 of March, 2023.

In exercise of the power conferred to the authority under rule 12 of the West Bengal State Tax on Professions, Trades, Callings and Employments Rules, 1979 the last date of filing return in Form-III for the period mentioned below is extended as specified in the following table:

No late fee shall be payable under sub-section (2) of section (6) of the West Bengal State Tax on Professions, Trades, Callings and Employments Act, 1979 for such return and for the said period of year ending 31.03.23 having been filed within the extended date, vide this order, as specified in the Table above.

• Online facility to correct errors in Members/Pensioners Applications for Validation of Option / Joint Option and to file the correct uploads under the Employees Provident Fund Organisation

As per the order issued by the EPFO it is notified that based on the request received from the EPFO Members/Pensioners, for the online functionality, a button for ‘Delete Application’ has been provided to the employees.

The employee after deleting application can, thereafter, if the Members/Pensioners so desires, file a fresh Application for Validation of Option / Joint Option with correct details / uploads.

However, this button can be used only if the employer has not acted on the Application for Validation of Option / Joint Option submitted by the employee.

Where employer has already acted on the Application for Validation of Option / Joint Option, the employee won’t be able to use the Delete Button.

However, even in such cases, employee will be provided opportunity to rectify the errors after the scrutiny of Application for Validation of Option / Joint Option by the Field Offices as per the HO circular dated 23.04.2023 (Sr. No. 18 of 2023-24).

• Mandating submission of Intimation of National and Festival Holidays in Form V by Factories under the Puducherry Industrial Establishments (National and Festival Holidays) Act, 1964 through online mode

As per the order issued by the Chief Inspector of Factories and Boilers, Puducherry, it is mentioned that the Intimation of National and Festival Holidays in Form V by Factories under the Puducherry Industrial Establishments (National and Festival Holidays) Act, 1964, henceforth, mandated the submission through online mode only.

The services shall be availed through online mode only to eliminate the need to submit the applications physically and track their status in each stage.

1. Act, 1947 and the Tamil Nadu Shops and Establishments Rules, 1948.On approval, the final certificate can be downloaded from the online portal anytime.

This will come into force with immediate effect and present practice of issuing signed copy of such Form is dispensed with immediate effect, except those already applied and under issue with the Office of The Chief Inspector of Factories & Boilers.

• Permission for all shops and establishments to keep open on all 365 days for the further period of three years under the Tamil Nadu Shops and Establishments Act, 1947

The Government of Tamil Nadu vide Notification No. II(2)/LWSD/174(a) 2023 dated 23 March, 2023 has notified to exempt all establishments from the provisions of sub-section (1) of Section 11 of the Tamil Nadu Shops and Establishments Act, 1947 and permits all the establishments in the State of Tamil Nadu to keep open on all 365 days of the year, for a further period of three years with effect from the 23rd March 2023, unless it is revoked, subject to the following conditions:-

1. Every employee shall be given one day holiday in a week on rotation basis and the details of every employee shall be provided in ‘Form S’ added to the Tamil Nadu Shops and Establishments Rules, 1948 and shall be exhibited by the employer in a conspicuous place in the establishments.
2. Every employer shall exhibit details of the employees who are on holiday/ leave, on daily basis, in a conspicuous place in the establishments.
3. The wages including overtime wages of the employees shall be credited to their savings bank account.
4. An employer shall not require or allow any person employed to work therein for more than eight hours in any day and forty eight hours in any week and the period of work including over time shall not exceed ten hours in any day and fifty four hours in a week.
5. If employees are found working on any holiday or after normal duty hours without proper indent of overtime, penal action will be initiated against the employer as laid down in the Tamil Nadu Shops and Establishments Act, 1947 and the Tamil Nadu Shops and Establishments Rules, 1948.
6. Women employees shall not be required to work beyond 8.00 p.m. on any day in normal circumstances; Provided that the employer / manager after obtaining written consent of a woman employee shall allow her to work between 8.00 p.m. and 6.00 a.m. subject to providing adequate protection of her dignity, honour and safety.
7. Transport arrangements shall be provided to the women employees who work in shifts. A notice to this effect shall be exhibited at the main entrance of the establishment indicating the availability of transport.
8. The employees shall be provided with rest room, wash room, safety lockers and other basic amenities.
9. Every employer employing women employees shall constitute Internal Complaints Committee against sexual harassment of women under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the said Committee shall be operative.
10. The above said terms and conditions shall be treated and implemented in addition to those provisions specified in the Tamil Nadu Shops and Establishments Act, 1947 and the Tamil Nadu Shops and Establishments Rules, 1948.
11. In case of violation of any statutory provision or any of the above terms and conditions noticed by the Inspector or otherwise, necessary penal action will be initiated against the employer/ manager as laid down in the Tamil Nadu Shops and Establishments 

• Extension of due date related to higher pension under EPFO

The due date for exercising the higher pension has been extended from 03-05-2023 to 26-06-2023. 

The extension has been provided based on the request raised by employees, employers and their associations

• Karnataka issued notification for declaring General Elections to the Karnataka Legislative Assembly, 2023

Office of the Chief Electoral Officer, Karnataka issued notification for declaring General Elections to the Karnataka Legislative Assembly, 2023 – Grant of Paid Holiday to employees on the day of Poll i.e. on 10.05.2023.

As per Section 3A of the Karnataka Industrial Establishments (National and Festival Holidays) Act, 1963, which states that “Notwithstanding anything contained in Section 3, when a General Election to the House of People or to the State Legislative Assembly or an election to, fill up, any casual vacancy in the House of People or to the State  Legislative Assembly is held under The Representation of the People Act, 1951 (Central Act 43 of 1951), every employee (other than an employee in an Industrial establishment owned or controlled by the Government of India) whose name is included in the electoral roll of the constituency where such election is held, shall be allowed on the polling day, a day’s paid holiday to enable him to exercise his franchise“.

As per the above said act, D.P.A & R (Elections) under Secretary to Government has instructed their authority to take necessary action in granting the paid holiday to the said employees across the State by issuing suitable instructions to all concerned on the day of Poll, which is fixed on 10.05.2023.

LABOUR CODES UPDATE 

TeamLease’s Opinion – There has not been any major movement or discussion towards the implementation of the four Labour Codes due to central election which shall take place in the next year i.e 2024 and number of states are yet to notify these Codes rules while some continue to have some reservations.

However, The Government of Rajasthan on May 09, 2023, notified the draft Rajasthan Code on Social Security Rules, 2023.  Subsequently the count of the draft Rules of Code on Social Security shall move to 28 States / UT’s

The ministry of labour and employment late last fiscal year held a series of discussions with stakeholders including industry representatives and trade union leaders to build consensus on the implementation date, but these efforts did not fructify, wherein certain  Trade unions are  opposed to them and a consensus with them had not been reached 

The status of publication of Draft State Rules , remains unchanged, with the following count of each Labour Codes:

1. Count of the Draft Wages Rules – 31 States / UT’s 

2. Count of the Draft Occupational Safety, Health and Working Conditions Rules – 

25 States / UT’s 

3. Count of the Draft Industrial Relations Rules – 27 States / UT’s 

4. Count of the Draft Social Security Rules – 28 States / UT’         

JUDGMENTS

In this section, we aim to highlight all relevant imperative judicial decisions rendered in the recent months in the area of Labour and Employment Law.

Misconduct

ORISSA HIGH COURT
Hon’ble Mr. Dr. S. Muralidhar, CJ.
Hon’ble Mr. R.K. Pattanaik, J.
W.P. (C) No. 7209/ 2013, Dt/– 29-7-2022

M/s. B.B. Kar
vs.
Sri Panchanan Pradhan and Another

DISMISSAL  from service, “when it would not be illegal”  

Background

Petitioner was contractor who supplied drivers to principal employer 

Workman accepted full and final after separation and after about 3 years workmen raised an industrial dispute

Labour Court held that refusal of employment to the workman without compliance of section 25F of Industrial Disputes Act, 1947 amounts to illegal termination of his service. 

Petitioner-principal employer challenged award in writ petition and contention of management was that workman had absconded due to his involvement in a criminal case and thus abandoned the job.

Burden was on workman to show that Management had refused employment since contention of Management was that it had not refused employment and it was workman who abandoned his service.

Management contention is workman, in fact, was booked in a criminal case and even workman did not report for duty after his release from bail.

Further, as per Rules of the Orissa CLRA after remaining absent unauthorisedly, workman was liable to be terminated.

Finding of Labour Court that there was an illegal termination of the services of the workman in violation of section 25F of the ID Act is based on no evidence whatsoever, hence, impugned award is set aside and cited Termination of service is not illegal.

Judgment

Dr. S. Muralidhar, CJ.–

1. The Petitioner challenges an Award dated 12th October 2012 passed by the Labour Court, Bhubaneswar in Industrial Disputes Case No. 31 of 2005.
2. It must be noted at the outset that there are two Opposite Parties in the present petition. Opposite Party No. 1 is the Workman and Opposite Party No. 2 is M/s Paradeep Phosphates Limited (PPL) where the Workman was engaged.
3. The background facts are that the Petitioner is a contractor establishment and is registered under the Contract Labour (Regulation and Abolition) Act, 1970 (CLRA Act). PPL is registered under the Companies Act. PPL issued a work order in favour of the Petitioner for supply of Pay Loader Drivers in 1996. This was renewed from time to time up to 2002. Since the need did not continue, no work order thereafter was issued to the Petitioner.
4. It is pointed out by the Petitioner that the period of services of the contract workers engaged by the Petitioner was co-terminus with the contract period. It is pointed out that all disputes and differences including conditions of service of the contract labourers during the entire tenure of their engagement by the Petitioner under Opposite Party No. 2, i.e., PPL was governed by the provisions of the CLRA Act.
5. According to the Petitioner, the Workman all of a sudden absconded from duty from 3rd July 2000 till December 2000 without any prior intimation or information. It was not possible for PPL to indefinitely wait for the Workman to return to work. It accordingly claimed that the services of the Workman came to an end and he too accepted this. The Workman accepted the full and final settlement in December, 2000. Subsequently, on 20th December 2003, nearly three years thereafter, the Workman raised an industrial dispute alleging refusal of employment with effect from 10th July, 2002. After conciliation efforts failed, the matter was referred to the Labour Court, Bhubaneswar.
6. According to the learned counsel for the Petitioner, Opposite Party No. 1-Workman did not work between July and December 2000 on account of an involvement in criminal proceedings and therefore, he was not entitled to the relief claimed.
7. It was submitted that the Labour Court should not have, in the face of such unimpeachable evidence, ordered reinstatement of the Workman. Rather than the Petitioner refusing employment to the Workman, he had in fact misconducted himself in terms of Rule 12(o) of the Orissa CLRA Rules, 1975. In terms of Clause-5 of the said Rules, the services of Opposite Party No. 1-Workman were automatically terminable.
8. Appearing for the Workman, learned counsel Mr. Roy defended the impugned Award of the Labour Court and pointed out that the Labour Court was justified in directing his reinstatement with compensation. It did not call for any interference.
9. It must be mentioned here that a separate affidavit has been filed on 18th July 2022 by PPL (Opposite Party No. 2) wherein in para 7, it is averred as under:

“7. That the period of Contract of the Opp. Party No. 2 with the Petitioner expired in 2002 because of lack of further requirement. The service of all contract workers engaged by the Petitioner was co-terminable on the expiry of the Contract period and all disputes and differences of such contract labourers are governed under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and not under the Industrial Disputes Act, 1947. Law is well settled that the Principal Employer is not a party to any dispute between the Contractor and its contract labourers.”

10. This Court has perused the impugned Award in light of the documents on record and the submissions of learned counsel for the parties. The fact of the matter is that Opposite Party No. 1-Workman was involved in the case of theft for which Paradeep Police Station Case No. 66 of 2000 was registered against him under section 379, IPC. On 6th July 2000, the Workman was released on bail. Even assuming that his absence from 2nd July 2000, up to 6th July 2000 was explained by the above events, the fact of the matter is that the Workman did not report for duty thereafter. The Labour Court simply went on the basis that a domestic inquiry ought to have been held against the Workman for his unauthorized absence from duty. There is nothing on record to show that the Workman in fact reported for duty. He does not appear to have returned to the Management saying that he was in fact reporting for duty and he had been refused to be offered employment. The Labour Court could not have presumed therefore that “refusal of employment of the Workman with effect from 10th July 2000 amounts to termination of his service.” The burden was on the Workman to show that the Management had refused employment. With the Management in its written statement clearly pointing out that it had not refused employment and that it is the Workman who abandoned his service, the burden shifted to the Workman to show that in fact the Management refused to take him back when he reported the duty. In particular, it was incumbent on the Workman to show that after being released on bail on 6th July 2000, he actually reported for duty.
11. The procedure for termination of services is indicated in Rule 12 of the Orissa CLRA Rules. Under Rule 12(2)(g) “Habitual neglect of work or habitual negligence” and under Clause-(m) of the said Rule “Habitual late attendance” would be treated as misconduct. Importantly, under Rule 12(5) “If a Workman absents himself for more than 5 continuous working days without leave application of making a representation to the contractor and without sufficient cause, his services shall be liable to termination without notice.” The Labour Court despite noticing Rule 12, did not bestow attention on Rule 12(5) particularly since there was no application for leave made by the Workman. It is evident that he was absent for more than five continuous days without permission. He did not even make any representation. Consequently, the finding of the Labour Court that there was an illegal termination of the services of the Workman in violation of section 25F of the ID Act is based on no evidence whatsoever.
12. For all of the aforementioned reasons, the impugned Award is hereby set aside. The writ petition is allowed. But, in the circumstances, with no order as to costs.

“Without labour nothing prospers”

THE CONTRIBUTORS TO THIS EDITION OF THE E-BULLETIN ARE – ANANDAM MARIMUTHU, MAHESH KUMAR, SHANMUGA SUNDARAM (SUBJECT-MATTER EXPERTS), TEAMLEASE SERVICES LIMITED (HR Tech)