Category Archives: Employment and Labour

Shipyard Slavery?

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Reportedly, Signal International, a marine fabrication company, apparently recruited about 590 Indian workers though a Mumbai-based Dewan Consultants Pvt. Ltd..

About one hundred and twenty of these workers who went to the US later alleged that they had been treated inhumanly at work and walked out with the support of local activists. They also made allegations of human trafficking against the Dewan Consultants.

In India, the government filed a case of cheating against the recruitment agency and suspended the registration certificate issued to it under the Immigration Act, 1983, allegedly without verifying facts. Justice Rekha Sharma of the Delhi High Court then directed the government to dispose of the inquiry pending against the recruiters within one month pointing out that ‘The registration certificate of the petitioner is under suspension since March 10, 2008 and on account thereof, petitioner is unable to operate as a recruiting agent.’ (This certificate is required for it to recruit workers for employment overseas.)

In the US, the Indian shipyard workers initiated proceedings in the District Court of Louisiana in March. Around the same time, the US Department of Justice also launched an investigation into matter.

The Case of the Overweight Air Hostesses

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Four air hostesses, Sheela Joshi, Shivani Mathur, Anne Patricia Dyook and Kiran Chaudhary filed writ petitions against Indian Airlines Ltd. which had grounded them for being overweight and told them that they would be treated on leave if there is any to their credit or otherwise on ‘leave without pay’ till they reduced their body weight so that it was within limits prescribed by the airline.

The airhostesses said that this order was unreasonable, unfair, without sanction of law and contrary to the Indian Airlines Employees Service Regulations. They also viewed it as an affront to their dignity, honour and womanhood.

The airline didn’t agree.

The appointment letters of the airhostesses inter alia said:

8. While undergoing Training in the Indian Airlines and the appointment as Air-Hostesses, you will be governed by the Indian Airlines Service Regulations applicable to the Flying Crew and Standing Orders concerning discipline and appeals as framed/ amended by Indian Airlines from time to time.
9. During the training period and on appointment as Air Hostesses, your services are liable to be terminated under the following circumstances
I) in the event of your getting married before the specified period
II) If you (a) fail to maintain vision without Glasses
(b) do not maintain weight within the prescribed limits
(c) develop air sickness.

On May 31, 2007, Justice Rekha Sharma of the High Court of Delhi held that they had no case. She said that their appointment letters were their nemesis; they agreed to the terms contained in them.

She also observed, “[I]t is not without rationale that the flying Crew has been subjected to certain standards of height and weight. Their job profile demands it. The aircrafts fly at a very high altitude. Quite often emergency situations arise because of air turbulence or on account of aircraft developing snag. The Cabin Crew including the Air Hostess are expected to handle the situation deftly, with alacrity and presence of mind. All this will be possible only if the Cabin Crew possesses the highest order of physical and mental fitness. And let us not forget that in this era of cut throat competition no Airlines can afford to remain lax in any department whatsoever, be it the personality of its crew members, their physical fitness in all respects or the air worthiness of the air craft or in relation to other facilities such as catering etc. If keeping in view this kind of job performance the Air Hostesses are asked to battle their bulge, control their girth and keep at desired level the affluence of their body weight as per the norms, it is not understood how it is in any way unfair, unreasonable and insulting to their womanhood. It is not the Air Hostesses alone which are put to these rigours. The other Members of the flying crew are also required to maintain a particular weight standard. If by perseverance the snails could reach the ark, why can’t these worthy ladies stand on and turn the scale.”

In 2008, a Division Bench of the High Court of Delhi comprising Justices A.K. Sikri and J.R. Midha affirmed her decision.

Govt. Officer Not Paid Extra for Extra Duties

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In the case of C N Vasudevan v. Union of India decided on May 7, 2008, a Bench of the Supreme Court comprising Justices Sema and Katju denied a Government Officer any honorarium or remuneration for taking on additional duties which could be performed within his normal working hours.

The issue in this case was whether C N Vasudevan, a Regional Passport Officer was entitled to the grant of honorarium/remuneration for the period he worked as Protector of Emigrants over and above his salary as Regional Passport Officer, Ahmedabad.

He had prayed to the Central Administrative Tribunal an honorarium for working as the Protector of Emigrants since the responsibilities of the Regional Passport Officer and are quite different. His prayer was allowed by the Tribunal. The High Court, by its impugned order, affirmed the order of the tribunal.

Hence, this appeal was made by special leave to the Supreme Court.

The counter affidavit filed on behalf of the Regional Passport Officer, Ahmedabad before the Tribunal states that in all 14 Passport Officers were authorised to perform the functions of Protector of Emigrants so as to decide whether a person intending to depart from India is an emigrant or not for the purpose of Emigration Act, 1983. The duties of Protector of Emigrant were part of the normal duty of the Regional Passport Officer and were to be performed by the Regional Passport Officer during the normal office hours on working days only.

The Supreme Court agreed with this contention. It then gave an analogous example: the District Magistrate/Collector of a district is often also the prescribed authority under various State and Central Acts for discharging functions under the said Acts. This does not entitle the District Magistrate/Collector to any extra remuneration over and above his normal salary.

(This post is an edited extract of the judgment.)

What Constitutes 100% Disability?

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An amputation of the right leg up to the knee joint amounts to 100% disability ruled a Bench of the Supreme Court comprising Justices Harjit Singh Bedi and Tarun Chatterjee in the case of K Janardhan v. United India Insurance Co. Ltd. & Anr. on May 9, 2008.

In this case, a tanker driver, while driving his vehicle met with an accident with a tractor coming from the opposite side. He suffered serious injuries and had an amputation of the right leg up to the knee joint.

He then moved an application before the Commissioner for Workmen’s Compensation praying that as he was 25 years of age and earning Rs. 3,000/- per month and had suffered 100% disability, he was entitled to a sum of Rs. 5 lac by way of compensation.

The Commissioner observed that the claimant was 30 years old and the salary as claimed by him was on the higher side and accordingly determined the same at Rs. 2000/- per month. He also found that as the claimant had suffered an amputation of his right leg up to the knee, he was said to have suffered a loss of 100% of his earning capacity as a driver and accordingly determined the compensation payable to him at Rs. 2,49,576/- and interest @ 12% p.a. thereon from the date of the accident.

The insurance company then appealed to the High Court which accepted that as per the Schedule to the Workmen’s Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation.

The driver then approached the Supreme Court saying that being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(e) of the Workmen’s Compensation Act and as such he was entitled to have compensation computed on that basis.

He relied on Narain Singh Deo v. Srinivas Sabata & Anr. (1976) 1 SCC 289 in which a carpenter who had suffered an amputation of his left arm from the elbow was held to have suffered a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed that:

5. The expression “total disablement” has been defined in Section 2(1)(e) of the Act as follows:
“(1) `total disablement’ means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.”

Applying the ratio of this judgment to the facts of the present case the Supreme Court held that the driver had also suffered a 100% disability. Under Sections 8 and 9 of the Motor Vehicles Act 1988, he would be disqualified from even getting a driving licence.

(This article is an edited extract of the judgment.)

No Arbitrary Punishments to Employees

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A (State) employer cannot award an arbitrary, unfair and unreasonable punishment to an employee ruled a Bench of the Supreme Court comprising Justices S. B. Sinha and Lokeshwar Singh Panta in the case of Man Singh v. State of Haryana & Ors. on May 1, 2008.

Man Singh was serving as Sub-Inspector in Police Department, Rohtak. In July 1996, he was deputed as Incharge of a police party comprising of ASI Sucha Singh, HC Suraj Bhan and HC Vijay Pal for taking two Government vehicles from Chandigarh to Hyderabad (Andhra Pradesh) for repair.

HC Vijay Pal who was driving one of the vehicles purchased 12 bottles of Indian-Made Foreign Liquor at Kota (Rajasthan) and concealed them in the dickey of the car without the knowledge and consent of Man Singh.

On checking of the vehicles by the Excise Staff of Adilabad in the State of Andhra Pradesh, 12 bottles of alcohol were recovered from the luggage boot of the car being driven by HC Vijay Pal, which gave rise to the registration of a case against him for transporting liquor in violation of prohibitory orders of the State Government.

The Superintendent of Police, Sonepat, ordered a departmental inquiry against Man Singh and HC Vijay Pal, charging Man Singh with improper control over his subordinates which amounts to dereliction of duties and for the lapses of indiscipline as Police Officer.

The Inquiry Officer found Man Singh guilty of the charge on the basis of summary of allegations. He was punished with the stoppage of two annual future increments with permanent effect

Vijay Pal was, however, exonerated primarily because he was not convicted in the criminal case filed against him and after exoneration, he was promoted to the higher post, whereas the appeal and the revision filed by Man Singh against the order of punishment were rejected on the technical ground that he did not exercise proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh.

The matter ultimately reached the Supreme Court which said that Man Singh’s employers cannot be permitted to resort to selective treatment to Man Singh and HC Vijay Pal.

It is a settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it.

The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals are to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of ‘fair play’ and reasonableness.

The principle is the same, namely, that there should be no discrimination between Man Singh and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. Man Singh and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State.

The Supreme Court held that the order of the disciplinary authority imposing punishment upon Man Singh for exhibiting slackness in the discharge of duties during his visit to Hyderabad when HC Vijay Pal was found involved in Excise offence, as also the orders of the appellate and revisional authorities confirming the said order were unfair, arbitrary, unreasonable, unjustified and also against the doctrine of equality.

Man Singh deserved to be treated equally in the matter of departmental punishment initiated against him for the acts of omission and commission vis-à-vis HC Vijay Pal.

Although the Supreme Court said it would, in normal course, have remitted the case to the High Court for a fresh decision to be taken, it exercised its extraordinary jurisdiction under Article 142 of the Constitution of India and decided the case on merits to avoid further delay.

The punishment awarded to Man Singh was set aside.

(This article is an edited extract of the judgment.)

Smoke-Free Laws and Employee Turnover

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A report in Contemporary Economic Policy examines the impact of smoke-free rules on the restaurant labor market according to the Hindu. While there have been a number of studies which show that smoke free rules do not hurt business, what was not earlier studied is whether they adversely impact employee retention.

However, if this study is to believed, such rules may actually aid employee retention immediately after they are implemented. In the long term — a five year period in this case — their presence or absence does not seem to affect employee retention and turnover.

The study which was conducted by Ellen Hahn by examing the ‘payroll records of a franchisee of a national full-service restaurant chain that operates twenty-three restaurants in Arizona’ challenges popular beliefs such as those which say that such laws would cause employees to leave their jobs or lose interest in them.

Employee Handbook

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Extracts from the Employee Handbook of the LA Times:

Rule 1. Use your best judgment.
Rule 2. See Rule 1.

Rule 7.1. If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated. See Rule 1. Coming to work drunk is bad judgment.
Rule 7.2. If you do not use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated.

…it’s such a pleasure to read a document like this which legalese has not overwhelmed and common sense has not abandoned.

Link: No legalese in this handbook – Los Angeles Times: http://www.latimes.com/business/la-fi-workrules17jan17,1,7332113.story