The Supreme Court realised the adverse impact of its ruling of 1978 (Bangalore Water Supply3) in 2005 and referred the same to a larger Bench in State of U.P. v. Jai Bir Singh4, which has not yet been constituted. In para 35 of the latter authority, adverse effects of the earlier authority have been summarised. During the last decade the Supreme Court has drastically modified its earlier views which were unduly inclined towards labour and were consequently too litigation friendly. Concept of reasonable limitation to challenge termination order has been introduced. Burden to prove that the workman had worked for 240 days before his termination has been shifted upon him. Full back wages, in case termination order is set aside, are not necessarily to be awarded. Either no back wages or part back wages may be awarded. The workman has to prove that after his termination he was not gainfully employed elsewhere. The most important departure is in the nature of relief to be granted to a workman if at the time of termination of his services, retrenchment compensation was not paid to him. Now the consistent view of the Supreme Court is that in such a situation particularly if the employer is the Government or governmental instrumentality and at the time of employment, due procedure was not followed then instead of reinstatement, consolidated damages/compensation (ranging between Rs 25,000 to Rs 1 lakh) may be awarded to the workman. This has reduced cases in Labour Courts and has checked to a great extent abuse and misuse of the ID Act by workers. 2. Regularisation of ad hoc employees For twenty to twenty-five years till 2006 the Supreme Court was extremely liberal in directing regularisation of ad hoc employees of the Government or governmental agencies. This doctrine proved disastrous and was misused to the hilt. However irregular, illegal or unwarranted, the appointment might be, it was required to be regularised. Regularisation was directed to be made even if the project or the purpose for which the employee was employed was over. Even few days’ employment was considered to be sufficient for regularisation. This led to large-scale backÓdoor entries (employments) and thereafter their regularisation by the courts. The competent but unresourceful seeker of government or governmental agency job was at sea. This resulted in huge filing of writ petitions for regularisation in the High Courts. Ultimately, in 2006 the Supreme Court through a five-Judge Bench authority [State of Karnataka v. Umadevi (3)5], put a full stop on this malpractice. It expressly overruled seven of its earlier authorities and further held that its other earlier authorities taking contrary view also stood overruled. The SCC in its editorial note has mentioned eighteen such authorities. In this manner, the Supreme Court overruled its twenty-five authorities. This is the measure of adverse impact which the orders of “regularisation” had made. Consequently, filing and pendency of writ petitions for regularisation also reduced drastically. If regular statistics had been prepared and published by the High Courts, probably the Supreme Court would have felt the need to undo the harm earlier. 3. Opportunity of hearing The next illustration is of opportunity of hearing. Earlier the Supreme Court was quite zealous in this regard. The slightest possible deficiency in providing full opportunity of hearing resulted in setting aside the order. This resulted in grave misuse particularly by the employees of the Government or governmental agencies (workers of private industries were also not lagging behind). It generated lot of litigation particularly in the High Courts. Employees unduly delayed the disciplinary proceedings (of course sometimes the inquiry officers in service matters and other officers in other matters are also at fault as they deny even bare minimum opportunity of hearing). Ultimately in 2000, the Supreme Court realised that enough was enough. It held that if someone (particularly the Government or the governmental agency employee) challenged the termination order through a writ petition then he would have to demonstrate in the writ petition that in case opportunity had been provided to him, what plausible cause he would have shown. It developed the doctrine of useless formality of opportunity of hearing (Aligarh Muslim University v. Mansoor Ali Khan6). The same principle was reiterated in 2007 (Ashok Kumar Sonkar v. Union of India7). This has rationalised and streamlined disciplinary/administrative proceedings with sensible participation of the employees/other affected persons therein. It has also reduced the filing and pendency of cases challenging orders passed in/on the basis of such proceedings.
Posted on: Tue, 09 Dec 2014 11:04:50 +0000
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