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., In service law, there is noplace for adverse possessionor holding over. 184

,. PlIO", of res judicata is arestraint on the right of aplaintiff to have anadjudication of his claim. 222

""Procurement price includedthe element of purchase taxunder the Lev">,Order 1985.

j.>' 209

~'10DEOF Cm'\TiON2010 {8}.SC •.L

18t,~8. zs= Nov., 2010

PARTS - 48 & 41

INDEX.. . ~ : 17 TO 32

JOURNf'-L : 1TO 16REPOH is 1TI" TO 336

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Weekly Law Journal'

.Ju~gmehtsofSupreme Court & Articles-' .

~~_~_"""_ ••••• _:. ~..,.,.:~-e.~..:;v.'.r,;...::.__...•.,.,;.~"-...~.<t:".-.,~-""'.~.. .:-•.• -, "

.' . Honorary Editors. SRI JUSTICE S. RAJENDRA BABU

~(Fo~merChief ju~ice ~fIndia) .

S~I,JU~TltE KJ.THOMAS(Former Judge,Supreme Court of India)

Chief AdvisorsSRI JUSTICE M, JAGANNADHA RAO

(Former Judge, Supreme Court of India}(Former Chairman, Law Commision of Irnfta)

DR. JUSTICE AR LAKSHMANAN.(Chairman, Law Commision of India)

Editor· in • Charge Edit<>.rialBoardVEPA P.SARATHI Sri Justice:S. Saghir Ahmed

(Senior Advocate, Supreme Court) (Former Judge, Supreme Court of India)

··SriJusticeU.C~Bal1erjee(Forrr,er Judg~, Supreme Court of India)• Editors

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.Manohar Gogia

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10 SUPREME COURT JOURNAL [2010

Though the Apex Court in the abovedecision also observed that the same GRIEVANCE PROCEDURE: ITSprinciple as in Calcutta Dock Board's case ROLE IN THE RESOLVING OF(supra) was reiterated in Hingareni's case DISPUTES - A STUDY(supra) and Shiiala Prasad Nagendra and Byothers' case (supra), in fact, a perusal of the Dr. Mukund Sarda"above said decisions go to show that it is 1. Labour agreements provide for onenot the case and the facts obtaining in both of the methods of resolving disputes, asthe cases are totally different, as already 'Grievance Procedure'. If the procedure isnoticed above. strictly followed as per the agreement or

It appears that the facts in the above standing orders applicable to the industry,two cases were not brought to the notice it may lead to the grievance being resolvedof the Hon'ble Supreme Court, as except . easily and amicably.referring to the-two decisions by names, 2 Th fa a grievance to arise. e source rneither facts were discussed nor referred may be attributable to the followingto. factors:-

an authority for the proposition thatwhen once the retiral benefits reach thehands of the retired employee or his/herL.Rs., on his/her death, it does not lose itscharacter as such.

The Supreme Court also observed thatthe decision in fyoti Chit Fund case (supra)has been watered down by subsequentdecisionsreferred to in paras 15 and 16,bu t in fact, in those decisions the decisionin Jyoti Chit Fund case was referred to aridfollo~ed. It was not demonstrated in thepresent case as to how the decision in [yetiChit Fund case was watered down.

Therefore, the settled legal positionobtaining on the point as held in [yothiChit Fund Case and also Hingareni's case, isthat when once the retiral benefits reachthe hands of the employee, it loses itscharacter as such and merge with hisassets and thus susceptible for attachment.

By its recent decision in Radhey ShamGupia'a case (supra), the Supreme Court ineffect, unsettled the already settled legalposition on the point, without actuallydistinguishing or referring to the facts inthe above decisions.

As per the law of precedents, since thedecision in Radhe Shuam Gupta's case (supra)

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referred to the earlier decisions on thepoint, it has to be followed being latest inpoint of time, until the Supreme Court itselfclaries the issue on the point.

(i) Employee's dissatisfaction relatingto the employment relationships ora feeling of personal injustice. Thismight arise frequently on accountof violation of terms and conditionsof service or standing orders or anyrule applicable to the industry;

(ii) An agreement between employer/management and w.orkers beingviolated solely with the intention ofthe party to commit a breach of theagreement;

(iii) Working condition or past companypractices resulting in dissatisfactionto employers or loss or deprivationof benefits due to them; and

(iv) Safety standards being violatedresulting in injury to employee/employees. There is no denial of thefact, that violations affect healthstandards as well.

• Principal & Dean, New Law College, BhartiyaVidya Peet University, Pune

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3. Grievance procedure must bedetailed. It must lay down norms toestablish the following procedures:-

(i) The procedure for the initiation ofthe grievance and its formulation inspecific terms;

(ii) Laying down the process in termsof specific steps to be taken in theproper order;

(iii) Persons to be identified to representthe parties on either side; and

(iv) Time-stipulation of each step andfor the subsequent steps to bestricti y followed and hearingsshould be fair.

4. The usual ·guidelines, which areobserved in handling a grievance may bestated thus:-

(i) Each department must constantlyendeavour to avoid problems,before they ripen into a grievance.In other words, early steps shouldbe taken to resolve the problem atthe level of concerned department;

(ii) Persons handling a grievance mustbe' good listeners' i.e., workers mustbe allowed to freely speak and argue.The tendency to prevent the workerfrom .raising his grievance byfrequent interruptions will have tobe restrained. If this is not done, thenthe basis for raising a grievance willnot be found and it follows as aconsequence, that no solution can beoffered for resolving it;

(iii) The need to adopt a 'positive orfriendly' approach is vital. Onlythen the workers will haveconfidence and an assurance thattheir grievance will be heard.Aggressiveness on the part of thelistener will damage the cause ofresolution of the grievance;

(iv) Persons handling the grievancemust possess 'abundant patience'.By shouting or becoming impatient,the real nature of the problem willnot be known;

(v) Personal consideration are to beavoided in order to find out, as tothe rightfulness of the issue;

(vi) If no resolution is found, partiesshould not get either upset orfrustrated. They should not resortto threats, exchange of heatedarguments or resort to unfair.methods, as other procedures areavailable under Industrial DisputesAct for resolving the disputes, suchas Arbitration, Conciliation andadjudication. A special mechanismexists for resolving the disputesthrough above methods;

(vii) 'Parties must exhibit a keen desireto settle the grievance byunderstanding the problems of eachother: The legitimate interest ofmanagement should be appreciatedby the workers and vice versa;

(viii) Persons handling the grievanceshould realize that they have towork with the aggrieved employeefor a long period. It is therefore,necessa ry that harmoniousrelationship should· subsistbetween the parties on the basis ofproper understanding;

(ix) Parties must understand eachother's right. Strictly insisting onone's own right withoutunderstanding the rights of theother side will not result in the'balancing of conflicting interest' butresult in more' conflicts' beingcreated. To quote a worthwhileexample, when an establishment isrunning on recurring losses, theemployees demanding more bonus

29

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12 SUPREME COURT JOURNAL [2010

than the rrurum um statutorilyeligible bonus, will only result inmore conflicts which will not resultin the resolution of the grievance atall;

(x) Where number of issues areinvolved, care has to be taken tosettle each issue on merits. Thetendency of settling one issue at theexpense of another, should beavoided, as otherwise unsettledissues would again crop up as afresh grievance, sooner or later.Thus, the grievance settlement itselfbecomes the cause or reason foranother grievance to arise;

(xi) The aggrieved worker must beinformed constantly at every stageat which the grievance rests.Inordinate delay and secrecy inhandling the grievance crea tessuspicion and lack of good-willbetween the parties. In the result,the grievance remains unresolved;

(xii) No ego should come in the way andthere is nothing like' prestige issue'.Parties must be able to rectify theirerrors in order to ascertain the realtruth. Then only appropriatesolutions can be found. In theabsence of real truth beingascertained, no solution worth thename can be found and the entireexercise may end in futility;

(xiii) Whenever a solution is found and adecision is taken, no time should beallowed to lapse in implementingthe decision; and -

(xiv) It is desirable to publish a book-leton 'grievance procedure', whereverit is not done so far. It must becirculated amongst all the workmenso that they can avail profitably theremedy through grievancesettlement mechanism. It is also

I

II

II

advisable to arrange a lecture'session for all employees so thatthey understand the grievanceprocedure correctly.

5. In conclusion, it may be stated thatthe above guidelines on 'grievanceprocedure' may considerably help theparties to resolve their grievancesamicably and peacefully and therebyavert a grievance becoming a majorindustrial dispute highly complicated andnot easier for settlement. After all, the

-object of the Industrial Disputes Act isprimarily to 'prevent industrial disputes;which may pose a threat to industrialpeace affectingtheproduction and theconsequent adverse affect on the economy _of the Country. The officer to be appointedas 'Grievance Settlement Officer' mustpossesses besides educational qualifications,certain other qualities mentioned in thisstudy, so that he is able to playa veryhelpful role in ensuring peacefulatmosphere in the industry, ratherthanbecoming a bottle-neck or obstacle inmaintaining such peaceful conditions. '.

GENDER JURISPRUDENCE -HUMAN RIGHTS PERSPECTIVE.By

Prof.(Dr). A.S.Raju*

"Human' rights issues are sointerwoven that no advance can bemade in one area with out referenceto another. Perhaps the mostimportant is need to strengthen theperception that all human rights areinter linked to the protection 9fwomen's rights"- Kay Fraleign, representative of theInternational Alliance of women atthe UN.

• Principal, New Law College, Ahmednagar-414001 M.5. professor.dr.asraju@gmail.com& P.S.N.PRASAD,Deputy Legal Advisor,R.B.!. Mumbai.

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