Legal Reference Library

In M/s Ziqitza Health Care Ltd. vs. State of MP, a single bench of the Madhya Pradesh High Court has held if the fundamental right of aggrieved party is not infringed than it is beyond the scope of judicial review under Article 226 of the Constitution to consider relief sought by the employer again. The court dismissed a petition filed by a private firm providing vehicles to 108 Emergency Ambulance Services of the State government. The government has outsourced the transportation to the petitioner private firm. Some differences cropped up between the petitioner private firm and its employees in respect of working hours, payment of wages and other service conditions led the the association of employees to give a demand letter to the petitioner. Justice Sanjay Yadav said “there exist a dispute between the employer and employees and the petitioner has already taken recourse to the provisions of the Industrial Disputes Act, 1947”. “The matter is under active consideration bef...

The Bombay High Court in Mr Sanjay Sadanand Varrier v/s M/s Power Horse India Pvt.Ltd. has held that a winding up petition filed by an employee under Section 439 r/w sections 433(e) and 434 of the Companies Act, 1956, as a creditor based on the claim of recovery of his unpaid salary and wages is maintainable. A division bench of Justice SC Dharmadhikari and Justice BP Colabawalla was hearing a company petition placed before them by the Chief Justice after a single judge in this matter took a different view from the one taken by another single judge in the case of Mumbai Labour Union vs M/s Indo French Time Industries Ltd. Petitioner Sanjay Varrier contended that from October 2009 till his resignation in March 2012, the respondent company did not pay him salary. Failing to reply .to the statutory notice sent by the petitioner under S. 434 of the Companies Act, the winding up petition was filed. While the respondent company relied on the decision of a single judge of the high court i...

In Manik Lal Bhowmik Vs. Bharat Sanchar Nigam Limited, the Calcutta High Court has held that a charge sheet issued against an employee in a disciplinary proceedings, the enquiry report and the letter of dismissal are protected by qualified proceedings, the enquiry report and the letter of dismissal are protected by qualified privilege. However, in the facts of the case two questions arise on the answer of which will depend the success or failure of this suit. Firstly, has the suit been filed within the time period specified in the Limitation Act, 1963? Secondly, assuming that the answer to the first question is in favour of the plaintiff, is the defence of absolute or qualified privilege available to the defendant? Section 3 of the Limitation Act, 1963 provides that subject to the provisions contained in Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence...

In ASHOK KUMAR SINGH vs UNIVERSITY OF DELHI AND ORS., the Hon'ble Delhi High Court has held that the Internal Complaints Committee (ICC) constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, must give a definite conclusion regarding the guilt of the person involved in the incident. Justice Valmiki Mehta was hearing a petition filed by Ashok Kumar Singh against the report of Internal Complaints Committee of Dayal Singh Evening College on account of complaints against him.

In Madan Kumar Athya vs The State of Madhya Pradesh, the Madhya Pradesh High Court has held the personal inconvenience, etc. cannot be a ground to challenge transfer from one place to another by an employee if it do not run contrary to statutory provisions. The court turned down the relief sought by the employee to get transfer to a nearby place on health ground and ailing old-aged mother dependent on him. Article referred: http://www.livelaw.in/personal-inconvenience-not-ground-challenge-transfer-mp-hc-read-order/

The High Court of Rajasthan in Uco Bank & Ors. v. Devi Kishan Harijan held that appointment on compassionate grounds cannot be allowed if the period of crisis is over for the family of the deceased employee. “In view of the various pronouncements cited above, it is apparently clear that the philosophy behind giving compassionate appointment is just to help the family in harness to get over the immediate crisis by the loss of sole breadwinner. This category of appointment cannot be claimed as a right after lapse of the period when the crisis is over. More so, the financial status of the family is also to be looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred contrary to the para-meters of the scheme,” the Bench comprising Justice Sangeet Lodha and Justice Deepak Maheshwari observed. Article referred: http://www.livelaw.in/compassionate-appointment-cannot-allowed-period-crisis-family-deceased-employee-...

The Supreme Court in Jorsingh Govind Vanjari Vs. Divisional Controller Maharashtra, State Road Transport Corporation, has held that in order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry, but there must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude. In the instant case, a bus conductor was terminated on the allegation that he had collected fare from six passengers without issuing tickets. In the domestic inquiry, he was found guilty but the Labour court set aside the termination order. But taking note of the fact that he had crossed the age of superannuation, instead of reinstatement, 50 per cent of the back wages from the date of termination till the date of superannuation with all other service benefits were granted. On appeal by the employer, the Bombay High Court modified the award an...

The Delhi High Court through Justice Vibhu Bakhru struck down a ‘non compete‘ clause in M/s Stellar Information Technology Private Ltd. Vs. Rakesh Kumar & Ors and decided in favour of the ex-employees who were restrained from carrying on their own business. The plaintiff is a private company engaged in the business of providing data recovery, data migration and data erasure solutions to its clients in India and abroad. They claimed that three of their former employees were stealing their confidential data, information, trade secrets and know how, and are now using the same for securing business from the plaintiff’s clients to run their own company called Techchef and contended that it was in breach of the “Confidentiality and Invention Assignment Agreement” and “Employee Confidentiality Agreement” entered into by the ex-employees with the plaintiff. Article referred: http://www.livelaw.in/guise-confidentiality-clause-employer-cant-restrain-trade-delhi-hc/

The Supreme Court in Madhya Pradesh State Road Transportation Corporation vs. Manoj Kumar & Anr. held that Voluntary Retirement Schemes (VRS) are contractual in nature and the option to opt for them constituted as an ‘invitation to offer’ and not an ‘offer’ themselves. The Bench of Justices AK Sikri and RK Agrawal also held that it is not open to the applicants to withdraw their applications after the stipulated last date. In the concerned case, the Madhya Pradesh State Road Transportation Corporation is a PSU that was running into losses hence, permission was obtained to wind it up and a VRS was introduced for the benefit of the employees. The employees could sign up for the scheme between 1st July 2005 and 1stAugust 2005 and no more options were to be accepted by the Corporation thereafter. However, vide order dated 12th October 2006 extended the date for applying up to 28th October 2006. The Court broadly relied on the two cases, namely, Bank of India & Ors. Vs. O. P. Sw...

A Three Judges Bench of the Supreme Court Avtar Singh vs. Union of India, has summarized the principles to be followed by Employers while dealing with issues related to suppression of information or submitting false information in the verification form by employees/candidates as to the question of having been criminally prosecuted, arrested or as to pendency of a criminal case. The Bench comprising of Justices Ranjan Gogoi, Arun Mishra and Prafulla C. Pant, observed: “The ‘McCarthyism’ is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.” Referring to various decisions, the Bench answered the reference to it, as follows. * Information given to the employer by a candidate as to convictio...

In a contractual master-servant relationship, no employee can assert a right to withdraw his resignation, especially after it had been accepted by the competent authority, on any ground, much less the ground of having tendered the resignation in frustration and under depression, the Madras High Court has ruled. A Division Bench of the High Court gave the ruling while dismissing a writ petition filed by a lower court employee who claimed to have resigned from the post of office assistant because he was made to perform domestic chores such as cleaning toilets even on holidays at the residence of a Chief Judicial Magistrate. Writing the judgment, Justice M. Venugopal said: “The term ‘resignation’ means the act of giving up or relinquishing office. A resignation must be unconditional and one with the intent to operate as such... In law, an employee has no locus poenitentiae (right to withdraw) to withdraw an offer of resignation after it was accepted. He also pointed out that the res...

Calcutta High Court has recently held that a person is not entitled to back wages for the period during which he was out of service due to dismissal from service by reason of his conviction under Section 498A of the Indian Penal Code and subsequent reinstatement in service upon his acquittal by the Appellate Court. In this Case the Petitioner was an employee of Food Corporation of India. FCI had dismissed him from Service on his conviction U/S 498A IPC, invoking the provision of Regulation 63(1) of the Food Corporation of India (Staff) Regulations, 1971. Subsequently, petitioner was found not guilty of the charge under Section 498A of the IPC by the Appellate Court. By an order dated 14 January, 2013, the petitioner was reinstated in service. It was stated in the said order that the period of the petitioner’s absence in service from the date of dismissal till the date of reinstatement will be treated as non-duty for all purposes and for that period he will not be entitled to any back w...

The Supreme Court in ITC LIMITED GURGAON vs. COMMISSIONER OF I.T. (TDS) DELHI, has categorically held that ‘tips’ received by Hotel employees does not amount to ‘salary’ from their employer and hence the employer need not deduct the tax at source under Section 192 of the Income Tax Act, though the same would be chargeable in the hands of the employees as“income from other sources”. Section 192 of the Income Tax Act states that any person responsible for paying any income chargeable under the head “Salaries” shall, at the time of payment, deduct income-tax on the amount payable at the average rate of income-tax computed on the basis of the [rates in force] for the financial year in which the payment is made, on the estimated income of the assessee under this head for that financial year. Receipt of the tips by Hotel employees was treated by the Assessing officer as income under the head “salary” in the hands of the various employees and held that the assessee were liable to deduct t...

No compassion can be shown to a person who has no will to work, the Delhi High Court has observed while upholding a termination order against a clerk of District Court who was accused of absenting herself from duty frequently. One Suman Taneja, who was working as Lower Division Clerk in the office of District Court had approached the Delhi High Court against the termination order passed against her. Perusing the records, the Court observed that the petitioner was not performing her duties with due diligence and she was found guilty of taking unauthorized leaves and she has failed to show that the leaves that were taken by her were sanctioned by the respondents. Thus, it is clear that the petitioner has decided at her own will when to take leave and when to report for duty, Justice Ved Prakash Vaish said. Even after issuance of repeated Memos, the petitioner neither report back to duty nor submitted anysatisfactory explanation for her absence, which shows that she was absolutely incorri...

 A driver who was sacked by a private school in 2003 has secured a judgment from the Supreme Court forbidding recognised schools in Delhi from dismissing any employee, including teachers, without "prior approval" of the director of education. In its judgment on April 13, SC upheld a provision in the Delhi School Education Act 1973 that requires all recognised schools to obtain the government's approval before sacking an employee. The section — 8(2) of the DSEA 1973 — had been struck down by the Delhi high court in July 2005. Terming the 2005 decision "bad in law", the apex court observed, "The intent of the legislature while enacting the same (Section 8(2)) was to provide security of tenure to employees of schools and to regulate the terms and conditions of their employment." Activists said the judgment will check "victimisation" of teachers who dare to raise their voice against arbitrary and illegal decisions of private school managements...

The Madras High Court has ruled that an employee removed from service due to conviction in a corruption case by the trial court is entitled for back wages if he wins his appeal in an appellate court. Besides if the employee wins the appeal on merit, he is entitled for continuity of service also, justices S Manikumar and C T Selvamof the Madurai bench said, dismissing a writ appeal by Executive Officer of Mamsapuram Panchayat against a single judge's 2013 order to reinstate an employee who was dismissed in 2008. The principle of "no work, no pay" cannot be applied in every case. Every employee reinstated in service on acquittal cannot be denied back wages and continuity of service. Once the conviction is set aside by an appellate court, the stigma is removed, the judges said. The employee should be restored to his original position as if he was not removed and continued to be in service all along, the Judges said. They disagreed with the Executive Officer's con...

Supreme Court has, in Nandram vs. M/s Garware Polyster Ltd., held that a complaint against termination of an employee of a company is not only maintainable in a Labour court having jurisdiction of the place where the employee was working, when the termination was ordered, but also the Labour court having jurisdiction of the place where the decision to terminate the employee was taken by the management of Company. In this case, the employee who was initially employed by the company in Aurangabad was later transferred to the company plant in Pondicherry where he was given termination order. He complained before the Labour court which held the complaint as maintainable. But the Industrial Tribunal on revision and later the High Court held that the Labour court at Aurangabad has no jurisdiction. The employee then approached the Apex Court. In a very short judgment, the bench of Justices Kurian Joseph and R.F. Nariman observed “The undisputed position is that the appellant was employed by t...

Employees dismissed from service after the conclusion of disciplinary proceedings initiated against them are also entitled to encashment of ‘Earned/Privilege Leave’ that they had accumulated to their credit over the years, the Madras High Court Bench here has ruled. Justice D. Hariparanthaman passed the order while allowing a writ petition filed by the dismissed General Manager of Thanjavur District Central Cooperative Bank since he was denied the benefit on the ground that it would be accorded only to those who retire from service on attaining the age of superannuation. The judge came to the conclusion after taking a cue from a decision rendered by a Full Bench of the Punjab and Haryana High Court on November 9, 2012 wherein it was held that employees can encash their earned leave on the day of retirement irrespective of the pendency of disciplinary proceedings. “The reason given by the Full Bench is that Earned Leave encashment is a right equal to the right to property ...

Death or injury resulting from negligence of a worker in the course of employment is no reason to deny compensation under the Employees Compensation Act, the Supreme Court asserted in the case, Jaya Biswal vs IFFCO Tokio General Insurance. Negligence is a factor under the Motor Vehicles Act, but not relevant in the Employees Compensation Act. In this case, a young truck driver died in an accident. His dependants approached the Commissioner of Compensation. He awarded Rs 10.75 lakh. The insurance company appealed to the Odisha high court. It reduced the compensation by half, "in the interest of justice". The parents appealed to the Supreme Court. It castigated the high court for reducing the amount by merely claiming that it was in the interest of justice. The apex court awarded Rs 11 lakh with 12 per cent interest. Moreover, the court stated that "in light of the unnecessary litigation and hardship of the dependants in spending on litigation to get the compensation we de...

High Court of Chhattisgarh has held that the exclusion of widowed daughter-in-law in compassionate appointment policy is constitutionally impermissible and to that extent void. Justice Sanjay K. Agrawal made this observation in Duliya Bai Yadav vs. State of Chhattisgarh. The High Court, in a petition filed by a widowed daughter in law of a deceased employee challenging the order rejecting her application seeking compassionate appointment, said that implied exclusion of daughter-in-law from the fray of consideration by the State Government without considering the fact as to whether the daughter-in-law is dependent or not is constitutionally impermissible. The Court observed “On marriage, wife becomes integral part of the husband’s marital room entitled to equal status of husband as a member of the family and, therefore, a woman on marriage becomes a member of her matrimonial family and she has rights and obligations in the family. A daughter-in-law is considered, traditionally, as Grih ...