BCP Associates

𝐓𝐞𝐫𝐦𝐢𝐧𝐚𝐭𝐢𝐨𝐧 𝐢𝐬 𝐚 𝐜𝐨𝐧𝐝𝐢𝐭𝐢𝐨𝐧 𝐩𝐫𝐞𝐜𝐞𝐝𝐞𝐧𝐭 𝐟𝐨𝐫 𝐟𝐨𝐫𝐟𝐞𝐢𝐭𝐮𝐫𝐞 𝐨𝐟 𝐠𝐫𝐚𝐭𝐮𝐢𝐭𝐲: 𝐌𝐚𝐝𝐡𝐲𝐚 𝐏𝐫𝐚𝐝𝐞𝐬𝐡 𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭 In the case of Sukhinand Saket Vs. The State of Madhya Pradesh and Ors. (2024:MPHC-JBP:49504, MANU/MP/3558/2024), the Respondent-Employer had ordered recovery of an amount allegedly misappropriated by the Petitioner-employee, from the retiral benefits due to the latter. The MP High Court found that the employee was exonerated of all the charges levelled against him in the departmental enquiry and also no documents were produced before the court to establish that the enquiry in question was in relation to the misappropriation alleged to have been committed. Further, the court relying mainly on the ruling of the Supreme Court of India in the case of Jaswant Singh Gill v. Bharat Coking Coal Ltd., MANU/SC/8647/2006 : 2006:INSC:821 : (2007) 1 SCC 663, held that recovery from gratuity is governed strictly by Section 4(6) of the Payment of Gratuity Act, 1972, which allows gratuity forfeiture mainly to the extent of damage caused, only if an employee’s services are terminated for specific acts, including wilful negligence causing loss or acts involving moral turpitude. In other words, it was imperative for the services of an employee to be terminated in pursuance of an act or omission causing damage to the employer, before recovering the said damages from the amount of gratuity payable to the employee. The Court allowed the employer to enforce the admissions of liability made by the employee, through separate proceedings but disallowed recovery from gratuity in violation of the Payment of Gratuity Act. #PaymentOfGratuityAct #ForfeitureOfGratuity #Termination #MadhyaPradeshHighCourt #LabourLaw #HR #BCPA #BCPAInsights

We are thrilled to announce that one of our colleagues, Mohamed Faheem, has been selected to play in the prestigious Big Cricket League! As a dedicated team player in our law firm, Faheem brings passion, discipline, and a strong work ethic to everything he does. We are confident that he will demonstrate the same level of commitment and excellence on the cricket pitch as he does in the office. His hard work, passion, and teamwork continue to inspire us all, and we couldn't be happier to see him achieve such a remarkable milestone. On behalf of the entire BCPA team, we wish you all the best as you take on this exciting new challenge! We're all cheering for you! #ProudMoment #CricketSelection #TeamPlayer #LawFirmExcellence #BCPA #BCPAInsights

𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐔𝐩𝐡𝐨𝐥𝐝𝐬 𝐓𝐞𝐫𝐦𝐢𝐧𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐄𝐦𝐩𝐥𝐨𝐲𝐞𝐞 𝐟𝐨𝐫 𝐀𝐛𝐚𝐧𝐝𝐨𝐧𝐦𝐞𝐧𝐭 𝐨𝐟 𝐒𝐞𝐫𝐯𝐢𝐜𝐞, 𝐐𝐮𝐚𝐬𝐡𝐞𝐬 𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭'𝐬 𝐑𝐞𝐢𝐧𝐬𝐭𝐚𝐭𝐞𝐦𝐞𝐧𝐭 𝐎𝐫𝐝𝐞𝐫   In the case of Life Insurance Corporation of India & Ors. v. Om Parkash, CIVIL APPEAL NO(S).4393/2010, the Supreme Court addressed an appeal against a judgment by the High Court of Himachal Pradesh that had reinstated the delinquent employee following his termination by LIC. The High Court granted relief to the delinquent employee on the ground that the termination order was passed without providing a reasonable opportunity or conducting an inquiry into the charge of absence from duty. The Supreme Court examined the facts surrounding the termination under Regulation 39(4)(iii) of the LIC Staff Regulations, asserting that the employee had abandoned his post, after being absent for over 90 days without notification. The Supreme Court observed that multiple notices were sent to the employee's permanent address, but the delinquent employee failed to respond to any of them. Furthermore, the Supreme Court noted that the delinquent employee was guilty of suppression of the fact of his employment with the Food Corporation of India (FCI) in the writ petition filed before the High Court. The Supreme Court emphasised that the High Court overlooked significant evidence, including the delinquent employee’s abandonment of his services and his subsequent employment at FCI. The High Court's ruling was deemed erroneous for granting relief without considering the implications of the employee’s abandonment of service. Consequently, the Supreme Court quashed the High Court's decision, upheld the termination, and allowed the appeal, with no order as to costs.    #SupremeCourt #Termination #Abandonment #LabourLaw #HR #BCPA #BCPAInsights

𝐒𝐚𝐛𝐛𝐚𝐭𝐢𝐜𝐚𝐥 𝐋𝐞𝐚𝐯𝐞: 𝐄𝐦𝐩𝐨𝐰𝐞𝐫𝐢𝐧𝐠 𝐆𝐫𝐨𝐰𝐭𝐡 𝐚𝐧𝐝 𝐄𝐧𝐡𝐚𝐧𝐜𝐢𝐧𝐠 𝐖𝐨𝐫𝐤𝐩𝐥𝐚𝐜𝐞 𝐂𝐮𝐥𝐭𝐮𝐫𝐞 A sabbatical is an extended break from work, typically longer than a regular vacation, approved by the employer. The duration is agreed upon by both the employee and employer, with sabbaticals often used for personal pursuits, employee rejuvenation, education, or career development that wouldn’t fit into regular work schedules. Sabbaticals are gaining popularity in India as more companies recognize their benefits for both employees and businesses. While there’s no legal requirement for companies to offer sabbatical leave, many do so to retain talent, boost morale, and support personal growth. For employees, sabbaticals provide time to rest, recharge, and explore personal interests, preventing burnout and improving well-being. They also offer a chance to develop new skills, benefiting organizations by upskilling their workforce and enhancing retention. For employers, sabbatical policies help improve employee satisfaction and workplace culture, while allowing for role restructuring and the acquisition of fresh talent. However, implementing sabbaticals presents challenges, such as managing staffing gaps and reintegrating employees afterward. Clear policies on eligibility, leave duration, approval processes, and transition plans can address these issues. When executed well, sabbatical leave fosters growth, reduces burnout, and positions companies as modern, employee-centric employers. #SabbaticalLeave #ModernWorkplace #EmployeeSatisfaction #WorkLifeBalance #Leadership #EmployeeEngagement #UpSkill #WorkplaceWellness #BCPA #BCPAInsights

𝐊𝐚𝐫𝐧𝐚𝐭𝐚𝐤𝐚 𝐇𝐢𝐠𝐡 𝐂𝐨𝐮𝐫𝐭 𝐑𝐮𝐥𝐞𝐬 𝐨𝐧 𝐀𝐩𝐩𝐞𝐥𝐥𝐚𝐭𝐞 𝐀𝐮𝐭𝐡𝐨𝐫𝐢𝐭𝐲'𝐬 𝐏𝐨𝐰𝐞𝐫 𝐭𝐨 𝐆𝐫𝐚𝐧𝐭 𝐈𝐧𝐭𝐞𝐫𝐢𝐦 𝐑𝐞𝐥𝐢𝐞𝐟 𝐔𝐧𝐝𝐞𝐫 𝐏𝐎𝐒𝐇 𝐀𝐜𝐭 The Karnataka High Court, in WRIT PETITION NO. 28361 OF 2024 (S-RES) ruled that the appellate authority under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) has the power to issue interim orders in appeals challenging the final report of the Internal Committee (IC). In this case, the petitioner was accused of sexual harassment at workplace by the second respondent. Based on the IC's final report, the employer ordered his transfer. The petitioner challenged both the ICs report and the resulting transfer order before the appellate authority and sought for stay of the impugned proceedings. However, the authority only issued a notice in the appeal and did not address the stay application. The High Court, on appeal, clarified that the POSH Act does not expressly prohibit the appellate authority from granting interim relief. Once the appellate authority has the power to set aside the impugned proceedings, it can be construed that the appellate authority also has implied power to grant interim relief. The Court emphasised that this power cannot be exercised in conflict with the provisions of the statute but can be exercised in the absence of an express prohibition. The principle of implied powers was supported by the legal maxim “ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest” which means when a right or power is granted, it also includes the necessary means to effectively exercise that right or power. #POSHAct #SexualHarassment #IC #InterimRelief #LabourLaw #HR #BCPA #BCPAInsights

𝐇𝐨𝐰 𝐜𝐚𝐧 𝐭𝐡𝐞 𝐀𝐠𝐠𝐫𝐢𝐞𝐯𝐞𝐝 𝐰𝐨𝐦𝐞𝐧 𝐟𝐢𝐥𝐞 𝐚 𝐜𝐨𝐦𝐩𝐥𝐚𝐢𝐧𝐭 𝐨𝐟 𝐒𝐞𝐱𝐮𝐚𝐥 𝐇𝐚𝐫𝐚𝐬𝐬𝐦𝐞𝐧𝐭 𝐚𝐭 𝐋𝐂𝐂?  While women in the organised sector have access to mechanisms like Internal Committees under the POSH Act, those in the unorganised sector such as domestic workers and construction labourers often struggle to secure justice. Many are unaware of the Local Complaints Committee (LCC), a vital body established under Section 6 of the POSH Act to address such grievances. The POSH Act, under Section 2(p) https://lnkd.in/e83njBus, extends its coverage to the unorganized sector. This sector includes enterprises owned by individuals or self-employed workers engaged in producing, selling goods, or providing services The aggrieved women can file the complaint by offline mechanism. As of now, the only other provision is for the aggrieved woman to submit a physical copy of the petition to the LCC at the district collectorate. The complaint must be filed within three months from the date of the incident. In the case of a series of incidents, it must be filed within three months from the date of the last incident. 𝘈𝘥𝘥𝘳𝘦𝘴𝘴 𝘰𝘧 𝘵𝘩𝘦 𝘓𝘰𝘤𝘢𝘭 𝘤𝘰𝘮𝘱𝘭𝘢𝘪𝘯𝘵𝘴 𝘤𝘰𝘮𝘮𝘪𝘵𝘵𝘦𝘦 𝘤𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘦𝘥 𝘶𝘯𝘥𝘦𝘳 𝘵𝘩𝘦 𝘚𝘦𝘹𝘶𝘢𝘭 𝘩𝘢𝘳𝘢𝘴𝘴𝘮𝘦𝘯𝘵 𝘰𝘧 𝘸𝘰𝘮𝘦𝘯 𝘢𝘵 𝘸𝘰𝘳𝘬𝘱𝘭𝘢𝘤𝘦 (𝘗𝘳𝘦𝘷𝘦𝘯𝘵𝘪𝘰𝘯, 𝘗𝘳𝘰𝘩𝘪𝘣𝘪𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘙𝘦𝘥𝘳𝘦𝘴𝘴𝘢𝘭) 𝘈𝘤𝘵, 2013, 4𝘵𝘩 𝘍𝘭𝘰𝘰𝘳, 𝘋𝘊 𝘖𝘧𝘧𝘪𝘤𝘦 𝘉𝘶𝘪𝘭𝘥𝘪𝘯𝘨, 𝘙𝘦𝘷𝘦𝘯𝘶𝘦 𝘊𝘰𝘮𝘱𝘭𝘦𝘹, 𝘒.𝘎. 𝘙𝘰𝘢𝘥, 𝘉𝘦𝘯𝘨𝘢𝘭𝘶𝘳𝘶, 𝘒𝘢𝘳𝘯𝘢𝘵𝘢𝘬𝘢 560009 Creating awareness about the LCC and its accessibility is vital to ensuring that women in the unorganised sector receive the protections guaranteed under the POSH Act. By bridging the gap between policy and awareness, the LCC can become an effective tool for justice. #LCC #POSHAct #InternalCommittee #UnorganisedSector #LabourLaw #HR #BCPA #BCPAInsights

𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐑𝐮𝐥𝐞𝐬 𝐨𝐧 𝐀𝐩𝐩𝐥𝐢𝐜𝐚𝐛𝐢𝐥𝐢𝐭𝐲 𝐨𝐟 '𝐖𝐨𝐫𝐤𝐦𝐚𝐧' 𝐒𝐭𝐚𝐭𝐮𝐬 𝐔𝐧𝐝𝐞𝐫 𝐈𝐃 𝐀𝐜𝐭 Time and again dismissed/terminated employees who don't fall under the ambit of the Industrial Disputes Act (ID Act) have knocked on the doors of Labour Courts instead of civil courts, owing to the special reliefs accorded only to the "workmen" which are otherwise not available under civil remedies. One such latest case is that of Sri. Lenin Kumar Ray Vs. Express Publications (Madurai) Ltd. [SLP (C) No.12876 of 2024] decided by the Hon'ble Supreme Court of India on 21st October 2024. The Appellant herein was an Assistant Engineer in the Supervisory capacity drawing a salary of Rs.6008.79 when his services were terminated in 2003. The Labour Court held that he was a "workman" in terms of Section 2(s) of the I.D. Act and ordered reinstatement with back wages. The High Court in appeal held that the Appellant was a "workman" under the act, but set aside the award of the labour court. The Supreme Court, in appeal, held that the appellant was not a workman as per the I.D. Act, based on the admission made by the appellant during cross-examination that he was supervising two juniors during his employment. Further, the Court also looked into the fact that during the time of termination of the employee i.e., on 08.10.2003, the statutory requirement for a person to be classified as a "workman" under the I.D. Act was a salary of not exceeding Rs.1,600/- per month and the appellant was drawing a monthly salary of Rs. 6008.79 which was more than the statutory requirement. Accordingly, the Supreme Court set aside the order of the High Court, confirming that the appellant does not fall within the definition of a "workman" under the I.D. Act. #IDAct #Workmen #Supervior #LabourLaw #HR #BCPA #BCPAInsights

𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭 𝐁𝐚𝐫𝐬 𝐌𝐢𝐝-𝐏𝐫𝐨𝐜𝐞𝐬𝐬 𝐂𝐡𝐚𝐧𝐠𝐞𝐬 𝐭𝐨 𝐆𝐨𝐯𝐞𝐫𝐧𝐦𝐞𝐧𝐭 𝐑𝐞𝐜𝐫𝐮𝐢𝐭𝐦𝐞𝐧𝐭 𝐑𝐮𝐥𝐞𝐬 A five-judge bench led by Chief Justice DY Chandrachud in TEJ PRAKASH PATHAK & ORS v. RAJASTHAN HIGH COURT & ORS, CIVIL APPEAL NO.2635 and 2636 OF 2013, delivered a landmark ruling, stating that the rules governing government job recruitment cannot be changed mid-process, unless the extant rules permit. The bench emphasised that altering recruitment rules after the process has begun would violate the principle of fairness. The court underscored that recruitment procedures must adhere to the values enshrined in Article 14 of the Constitution and satisfy the test of non-arbitrariness. The judges unanimously agreed that public recruitment must be transparent, fair, and predictable. The panel clarified that once recruitment rules are established, they should remain unchanged throughout the process to ensure fairness and avoid any disadvantage to candidates. They stressed that candidates should not be subjected to unforeseen modifications in the rules that could disrupt their prospects or create an uneven playing field. The ruling highlights the importance of maintaining consistency and integrity in public recruitment processes, ensuring that the principles of fairness and transparency are upheld. #SupremeCourt #Recruitment #nonarbitrariness #GovernmentJobs #Labourlaw #HR #BCPA #BCPAInsights

𝐆𝐑𝐎𝐖𝐓𝐇 𝐎𝐅 𝐆𝐂𝐂𝐬 𝐈𝐍 𝐈𝐍𝐃𝐈𝐀: 𝐓𝐇𝐄 𝐌𝐀𝐇𝐀𝐑𝐀𝐒𝐇𝐓𝐑𝐀 𝐂𝐇𝐀𝐏𝐓𝐄𝐑 Global Capability Centers (GCC) - SAT or GCCs are offshore units of multinational corporations that operate across the globe. They provide various support service to their parent organisations. As per the nasscom Report, GCCs in India have risen to over 1700 in the Financial Year 2024. States such as Andhra Pradesh, Tamil Nadu, Karnataka, and Uttar Pradesh have incentives in place to bring in GCCs. Karnataka introduced India’s first state-level Karnataka Global Capability Centre (GCC) Policy 2024-2029 to assist with the growth of GCCs by potentially attracting 500 new centres, which has the potential of creating 350,000 jobs by 2029. Following this move by Karnataka, Maharashtra is actively engaging with industry stakeholders to create a dedicated policy for Global Capability Centres (GCCs), aiming to strengthen its position in attracting investments from this rapidly growing sector. Maharashtra already benefits from strong data connectivity, reliable power, and a high concentration of data centres, making it an attractive GCC destination. With 12-14% of India’s GCCs located in Mumbai and Pune, the state plans to expand further, identifying cities like Nashik and Nagpur as new GCC hubs. The state’s discussions with industry leaders highlight areas for potential support, such as special economic zones, tax incentives, competitive real estate, and talent development strategies to drive growth in the GCC sector. This will be a promising development for employers as it has the potential to expand their organisations. Consequently, there will be an expansion of the employer-employee relationship due to the growth of relations between the companies. #Employer #EmployeeRelations #GCC #FY2024 #MaharashtraGCC #BCPA #BCPAInsights

𝐊𝐚𝐫𝐧𝐚𝐭𝐚𝐤𝐚 𝐏𝐫𝐨𝐩𝐨𝐬𝐞𝐬 𝐖𝐞𝐥𝐟𝐚𝐫𝐞 𝐅𝐮𝐧𝐝 𝐟𝐨𝐫 𝐆𝐢𝐠 𝐖𝐨𝐫𝐤𝐞𝐫𝐬: 𝐀 𝐒𝐭𝐞𝐩 𝐓𝐨𝐰𝐚𝐫𝐝𝐬 𝐄𝐧𝐡𝐚𝐧𝐜𝐞𝐝 𝐒𝐞𝐜𝐮𝐫𝐢𝐭𝐲 𝐚𝐧𝐝 𝐒𝐮𝐩𝐩𝐨𝐫𝐭 The Karnataka Government announced a 1%-2% "welfare cess" on transactions made through online aggregator platforms like Swiggy, Zomato, and Ola towards the Gig workers Welfare Fund. The draft of the Karnataka Platform Based Gig Workers (Social Security and Benefit) Bill, 2024, proposes establishing this fund to support gig workers through a transaction-based cess or a levy on aggregators' annual earnings. Since then, many of the gig worker unions have advocated for the transaction-based cess model. The Karnataka Labour Minister clarified that the cess would apply solely to transportation costs, with the expense evenly shared between the consumer and the aggregator. Although a 2% of cess has been suggested, the government is yet to make a final decision and will collaborate with aggregators to monitor transactions and the government will seek input from various stakeholders to shape the specifics. Acknowledging the occupational hazards faced by gig workers including road accidents, long hours on the road, and exposure to pollution the Labour Minister emphasized the urgent need to create safety nets for these essential workers. The proposed fund aims to provide gig workers with crucial support, including health insurance and educational assistance for their children. Additionally, the Labour Minister clarified that the draft bill will not conflict with the central government's proposals for worker benefits, as it will be specifically tailored to meet the needs of Karnataka. This initiative is designed to align with national efforts under the Union government to support gig workers, ensuring a cohesive framework that avoids overlap or conflict between state and national policies, thereby providing consistent social security benefits across all jurisdictions. #GigWorkers #SocialSecurityCode #WelfareCess #LabourLaw #HR #BCPA #BCPAInsights