Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: On the issue of whether wait list candidates can be considered for filling up vacancies caused due to resignation of appointed candidates, the Division Bench of Pankaj Mithal, CJ., and Moksha Khajuria Kazmi, J., observed that “a select/waiting list prepared may remain operative and valid for a period of one year, but that would only be for a limited purpose of appointing the selected/wait list candidates on the vacancies which remains unfilled due to non-joining of the selected candidate for one reason or the other.”

Facts and legal trajectory of the case: The Jammu and Kashmir Service Selection Board had issued an Advertisement notification on 30-12-2014, inviting applications for the position of Junior Engineers (Civil), in which the respondents had applied. As per the selection list notified on 29-04-2016, the respondents were placed in the waiting list. The selected candidates were appointed on 25-05-2016, but when two selected candidates failed to join, two other waitlist candidates were appointed as replacements.

Subsequently, when other selected candidates resigned to pursue their selection as Assistant Engineers in terms of the same advertisement; the respondents claimed appointment for these vacancies, since they were on the waitlist.

Furthermore, they filed a writ petition, seeking relief to keep the select list operational for one year, so that they can join as Junior Engineers when any other selected candidates resign. This writ petition was allowed by the learned Single Judge of the High Court. The Selection Board challenged this decision before the Division Bench of the High Court.

Issues: The main issue before the Court was whether on the resignation of appointed candidates, the vacancy that arises would be a fresh vacancy or would be the same vacancy as advertised which can be filled up from the select panel or the wait list?

Analysis and findings:

The Court perused the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, R. 14(7), to answer the primary question. It was noted that the provision is divided into two parts wherein “the first part provides for preparation of a select/wait list which will remain operative for a year for consideration of the names of wait list candidates against drop out vacancies; and the second part lays down that the selection committee shall not recommend any wait list candidate for any future vacancy or any vacancy caused due to resignation of any selected candidate after he was appointed”.

It was observed that R. 14(7) clearly states in a mandatory form that the selection committee shall not maintain or recommend any select or waiting list candidate for any future vacancy or any vacancy caused on account of resignation by any selected candidate who gets appointed. “The language of the provision is clear enough to establish that no candidate from the select list or waiting list shall be appointed on any vacancy which is caused due to resignation of a selected candidate joining the post”. In support of this view the Court discussed several cases, namely, Shankarsan Dash v. Union of India, (1991) 3 SCC 47; Manoj Manu v. Union of India, (2013) 12 SCC 171.

Conclusively, the Division Bench held that the Single Judge had erred in law in allowing the writ petition and directing the respondents to operate the waiting list even against the vacant posts caused by resignation of the candidates. The previous order was set aside and the petition was dismissed.

[State of JK v. Danish Zia Bhat, 2022 SCC OnLine J&K 513, decided on: 27-06-2022]


Advocates who appeared in this case :

D.C. Raina, AG with M. A. Chashoo, AAG and Sajad Ashraf, GA, Advocate, for the Appellants;

Z.A. Shah, Sr. Adv. with A. Hanan, Advocate, for the Respondents.

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise & Service Tax Appellate Tribunal, Bangalore (CESTAT): The Coram of S.K. Mohanty (Judicial Member) and P. Anjani Kumar (Technical Member) reiterated that, any compensation paid by the employee to the employer for resigning from the service without giving the requisite notice, would not be termed as consideration for the contract of employment and as such, would not fall within the preview of taxable service.

Factual Background


Appellants in the present matter had collected a certain amount as ‘Notice Period Pay’ or ‘Bond Enforcement Amount; from their employees, who wanted to quit the job without notice or do not serve the organization for the prescribed period as per the terms of the employment contract.

Further, during the audit of records maintained by appellants, it was observed that the appellants did not pay service tax on the consideration received on account of ‘notice pay’ from the employees.

In view of the above, show cause proceedings were initiated against the appellants, which culminated into the adjudication order, wherein service tax demand of Rs 6,21,514 and Rs 3,43,561 along with interest was confirmed. Besides, the said order had imposed penalties of Rs 6,21,514 and Rs 34,256 under Sections 78 ibid and 76 ibid respectively.

On appeal against the above adjudication order, the Commissioner (Appeals) vide the impugned order upheld the adjudication orders.

On being aggrieved with the above order, appellants preferred the appeals before the Tribunal.

Analysis, Law and Decision


Tribunal expressed that the term ‘notice pay’ mentioned in the employment contract cannot be considered as a service, more specifically as a taxable service inasmuch as neither of the parties to the contract provided any service to each other.

Coram added that the amount received as compensation by the appellants cannot be equated with the term ‘consideration’ inasmuch as the latter is received for performance under the contract; whereas, the former is received, if the other part fails to perform as per the contractual norms.

Therefore, the impugned orders were set aside, and the appeal were allowed. [XL Health Corpn. India (P) Ltd. v. Commissioner of Central Tax, Final Order Nos. 20225 – 20226 / 2022, decided on 6-5-2022]


Advocates before the Tribunal:

Ravi Banthia & Madhuri Rau, CA: For the appellants

Rama Holla, Superintended (AR): For the respondent

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., dismissed a PIL seeking issuance of writ of Mandamus on the Union of India, to impose restrictions to prevent Civil Servants from contesting elections to the Legislature, Central or State, on a political party ticket, immediately after retirement or resignation from service, by imposing a “Cooling off Period”.

Finding the allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to be vague, devoid of particulars and unsupported by any materials, the Bench expressed,

“No particulars have been given of the number and/or percentage of erstwhile bureaucrats, who have contested elections on the ticket of a political party, not to speak of any act on their part, prior to their retirement, in deviation of the standards required of bureaucrats.”

Law on Mandamus

A Mandamus lies for enforcement of a fundamental right or a statutory right, or the enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus. The right to compel performance of a public duty must be that of the Petitioner.

Hence, observing that there was no complaint of violation of any fundamental right of the Petitioner or any group of persons represented by the Petitioner, the Bench held that the writ petition could not be entertained; the Bench observed,

“Nobody has the fundamental right to get a mandatory order of this Court directing the appropriate Legislature to enact law or the Executive to frame rules imposing restrictions on the eligibility of civil servant to contest elections.”

The Bench clarified that the writ of Mandamus is only granted to compel performance of a public duty or to enforce private rights when duties of a public nature, affect public rights or when private rights are breached by or in collusion with public officers. The legal duty that may be enjoined by Mandamus can be one imposed by the Constitution, a statute, any law or by rules or orders having the force of law, which are capable of being judicially enforced.

Judicial Limitations on issuing Mandamus

“This Court, and/or the High Court, does not give any direction to the State to enforce an Act passed by the Legislature. Nor does the Court enforce instructions in a Departmental Manual not having statutory force, any non-statutory scheme or concession which does not give rise to any legal right in favour of the Petitioner, far less, any recommendation made by an authority such as the Election Commission.” Observing the aforesaid, the Bench held that it is for the Union of India to take a decision on the recommendation of the Election Commission, in accordance with law and that it is not for the Court to decide what should be the policy of the Government. Since, policy matters are never interfered with, unless patently arbitrary, unreasonable or violative of Article 14 of the 5 Constitution.

Observations and Conclusion

Noticeably, the petitioner had filed a similar petition in the Jharkhand High Court which had been dismissed; however the petitioner did not question the dismissal order in the Supreme Court. Therefore, the Bench held that the petition was barred by the principles of res judicata and/or principles analogous thereto. With regard to the issue raised, the Bench opined,

“There can be no doubt that law may be enacted, laying down the norms and qualifications for contesting specific elections. It is, however, for the appropriate Legislature to frame the law. There can be no doubt that civil servants should maintain the highest ethical standards of integrity and honesty; political neutrality; fairness and impartiality in the discharge of duties, courtesy, accountability and transparency.”

Integrity, impartiality, neutrality, transparency and honesty being non-negotiable for the civil servants, the Bench held that ethical standards necessarily have to be enforced and stringent action taken against the concerned officer whenever there is any breach of ethical standards as laid down in the All India Services (Conduct) Rules, 1968.

Apart from the fact that no fundamental right of the Petitioner was in issue, the Bench opined that there was no merit in the contentions raised, even otherwise.

Hence, the Bench concluded that it is not for the Court to interfere in matters relating to framing of law, rules or policy and the question, whether there should be any “Cooling off Period” for civil servants for them to contest elections or not should be best left to the concerned Legislature.

Consequently, the petition was dismissed.

[Vivek Krishna v. Union of India, W.P. (C) No. 1034 of 2021, decided on 18-04-2022]


Appearance by:

For the Petitioner: Vivek Krishna (in person)


Kamini Sharma, Editorial Assistant has put this report together

Bombay High Court
Appointments & TransfersNews

Justice Pushpa Virendra Ganediwala, has tendered her resignation from the office of Additional Judge, Bombay High Court, in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from 11th February, 2022.


Ministry of Law and Justice

[Notiication dt. 14-3-2022]

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Umesh Chandra Srivastava, J., and Vice Admiral Abhay Raghunath Karve, Member (A) slammed the government for failing to call back the apprehension roll of the applicant even after accepting her resignation. The applicant had been declared a deserter for not resuming her duty even though her resignation application was accepted by the authorities concerned.

Brief facts of the case were that after serving ten days in the Army Medical Corps, the applicant submitted an application for resignation on the ground that she was detailed for MOBC course at Lucknow. As per the applicant she was assured by the DGAFMS during selection interview that she would be allowed to live with her parents for some time in Delhi. The applicant also wrote a letter  for  cancellation  of  Part-II  Order  with  respect  to  commissioning  in  AMC.

According to the applicant, her resignation was  accepted  vide  letter  dated  02-09-2008  and  the  same  was  conveyed  to  her.    Applicant  got  married  on  01-07-2017  and  while proceeding to Zurich for honeymoon trip she was stopped  at Airport by immigration department on the pretext of look out  notice (apprehension roll) sent by Base Hospital, Delhi Cantt in  the  year  2008,  which  according  to  applicant  gave  her  mental  pain  and  agony. The applicant contended that her  detention  at  the  Delhi  Airport  in  2017  caused  irreparable damage to her and her parents‟ reputation, in eyes  of  her  husband  and  her  in-laws, therefore, she pleaded for revocation  of  all  actions  against  her  issued  after submission of her resignation from Army service and acceptance by the authorities concerned.

On the other hand, the respondents submitted that the applicant was initially granted 11 days leave which was extended to 60 days leave and the applicant ought to have rejoined from leave on 13-07-2008 which she failed to do. Thereafter, apprehension roll was issued and same being in force, her resignation was accepted vide order dated 02-09-2008. The respondent contended that since the applicant did not report in spite of being duly informed by the unit on multiple occasions, her documentation with regard to final acceptance of resignation could not be completed and the letter dated 02-09-2008 conveying provisional acceptance of her resignation became infructuous and void.

The Tribunal noticed that though vide order dated 02-09-2008 her resignation was approved but presumably the apprehension roll was left uncancelled due to oversight on the part of the respondents which resulted in her detention on 04-07-2017 at Airport when she was to leave for Zurich with her husband, but later on she was released from custody. On scrutiny, the Bench came to know that vide order dated 20-07-2017 applicant was allowed to leave India subject to her filing of an undertaking that she will return within a period of two months.

Noticing that although the apprehension roll was issued on 26-07-2008 and she visited and met the Commandant, Base Hospital, Delhi Cantt along with her father on 22-09-2008, nearly two months after issue of the apprehension roll, no steps were taken by the Hospital authorities to apprehend the applicant, the Bench opined that the such actions indicated that they had no intention of apprehending the applicant, presumably as her resignation had already been accepted on 02-09-2008. The Bench stated,

“Prima facie it appears to be a case of non application of mind by the respondents while dealing with the present matter as after acceptance of her resignation in the month of September, 2008, respondents ought to have cancelled their apprehension roll which caused great distress and hardship to applicant throughout and particularly while proceeding abroad on honeymoon in the year 2017.”

Consequently, the Bench opined that since the respondents had accepted her resignation in September, 2008 after following due process and thereafter, no proceedings were required to be held in applicant’s case, being not subject to Army Act. In view of the above, respondents were directed to cancel all proceedings against the applicant carried out after 02-09-2008. Impugned orders with respect to applicant were hereby quashed. [Parul Jain v. Union of India, 2021 SCC OnLine AFT 7429, decided on 02-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicant: SS Pandey, Advocate and SS Rajawat, Advocate.

For Union of India: Sunil Sharma, Central Govt. Standing Counsel

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and A.S. Bopanna, J., clarified the law relating to “late entrant” under Pension Regulations for Army. The Bench stated,

“When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication.”

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Armed Forces Tribunal (Srinagar Bench) by which the Tribunal had granted terminal/pensionary benefits to the respondent and directed the government to process his claim taking his qualifying service as 15 years as regards “late entrant” in terms of Regulation 15 of the Pension Regulations and to release the same together with arrears, the government had approached the Court seeking intervention.

Factual Fulcrum

The respondent was commissioned in the Indian Army (Armed Medical Corps) as a Short Service Commission Officer for a period of five years. Later on he was granted Permanent Commission on 28-01-1998 and thereafter he first became a Graded Specialist and then Classified Specialist.

By letter/application dated 15-04-2000, the respondent applied for resignation on the ground of lack of promotional prospects. At that time his actual date of superannuation at 56 years of age was 31-05-2014. The resignation application, having being initially rejected was later accepted vide order dated 31-01-2007 only after the intervention of the High Court, however, it was stated that he was not entitled to any terminal benefits except for encashment of leave. Aggrieved by the said order, the respondent approached AFT.

Stand taken by the Central Government   

The State argued that the Tribunal had materially erred in directing to consider the qualifying service of the respondent as 15 years as a “late entrant” under Regulation 15 of the Pension Regulations and had wrongly observed that the respondent submitted the request for “voluntary retirement”. The State contended that it was not a case of “voluntary retirement”, but of “resignation” by the respondent on the ground of lack of promotional prospects, therefore, the respondent should not be entitled to the benefit as “late entrant”.

It was submitted that even otherwise the respondent did not complete the qualifying service for the purpose of “voluntary retirement” at the time he applied for resignation and that he was not even eligible for premature retirement as he had rendered service for 15 years and 27 days while minimum qualifying service required for retirement, i.e., 20 years under Regulation 25(a).

Submissions by the Respondent

The respondent argued that in accordance with Pension Regulations, 2008, respondent’s pre-commission service as Research Scholar with Gandhi Medical College, Bhopal and as a Medical Officer with BHEL, totalling to 6 years 4 months and 6 days should also be counted towards his total qualifying pensionable service. Accordingly, it was submitted that thus the respondent’s total qualifying pensionable service was 22 years 11 months and 2 days.

The respondent submitted that his real intention was to seek premature retirement but he was told that since he had less than 10 years of service at that point of time, premature release before 10 years of service had to be termed as “resignation” and not as “premature retirement”; therefore his application was treated as one of “resignation” and not as “premature retirement” due to technical reason, even though the he had no intention to resign and thereby losing his service benefits.

Opinion and Analysis

“If we see the averments in the writ petition all throughout the word used by the respondent is “resignation”. Therefore, only as an afterthought and to get the benefit of “late entrant” under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for ‘voluntary retirement’ and it was not an application for ‘resignation’”

Noticing that the respondent had accepted that on 15-04-2000 he was not eligible for “voluntary retirement” and therefore he used the word “resignation” to get out of the technical reason, the Bench stated that the respondent had tendered “resignation” for lack of promotional avenues/aspects and it was not a case of “voluntary retirement” as there is a distinction between “resignation” and “voluntary retirement” because a person can resign any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.

The Bench further observed that such issue cannot be dealt with on a charity principle, therefore, having tendered “resignation”, the respondent had to suffer the consequences and could not be permitted to take ‘U’ turn and say that what the respondent wanted was “premature retirement” and not “resignation”.

Applicability of Pension Regulations, 2008

Rejecting the argument of the respondent that as per Regulation 19(h) and 19(j) of the Pension Regulations, 2008 a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification should also be counted for the purpose of pensionable service, the Bench opined that case of the respondent would be governed by the Pension Regulations, 1961, which had no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations, 2008 since the respondent’s name was struck off from the Army Medical Corps in the year 2007 and Regulation, 2008 has no retrospective applicability.

Whether the respondent was entitled to the benefit of Regulation 15 as a “late entrant”?

According to Regulation 15 if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a “late entrant” and is entitled to pensionary benefits by getting 5 years grace period. Hence, as the respondent did not retire on reaching the prescribed age limit for compulsory retirement, he could not be said to be a “late entrant”, therefore was not entitled to the pensionary benefits.

Decision

Resultantly, the impugned judgment and order passed by the AFT was hereby quashed and it was held that the respondent was not entitled to the terminal/pensionary benefits as a “late entrant” in terms of Regulation 15 of the Pension Regulations.

[Union of India v. Abhiram Verma, 2021 SCC OnLine SC 845, decided on 30-09-2021]

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Kamini Sharma, Editorial Assistant has put this report together 

_________________________________________________________________________

Appearance by:

For the Union of India: ASG Madhavi Divan

For the Respondent: Senior Advocate Vikas Singh


*Judgment by: Justice M.R. Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Delhi High Court: While addressing a petition seeking direction for issuance of a joining letter for joining the pre-commission training at Officers Training Academy, Chennai, the Division Bench of Manmohan and Navin Chawla, JJ., made a very significant observation that:

“Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.”

Petitioner was short-listed and called to appear before the Service Selection Board for an interview.  The merit list was published by the respondents on 10-11-2020 wherein the petitioner was placed at Serial Number 9 in the order of merit.

Eleven candidates, including the petitioner, who were successful at the SSB interview, were subjected to a medical examination wherein two candidates, placed at Serial Numbers 3 and 7 in the merit list, were found medically unfit.

Top six candidates on the merit list were required to undergo pre-commission training at OTA with effect from 10-01-2021.

Later, the petitioner learnt that candidate placed at the 6th position voluntarily withdrew himself from the OTA and was accordingly allowed to leave the Academy.

Hence, the petitioner claimed that on withdrawal of the said candidate, the petitioner should have been issued a joining letter, though he was not issued the same and hence preferred the present petition.

Analysis, Law and Decision

With respect to the vacancy arising due to resignation of the person concerned, the instruction in regard to following the procedure for processing of resignations stated that, where the resignation is accepted and approved by the Commandant, intimation thereof has to be sent to the Recruiting Directorate Army HQ to ensure that a replacement is sent to the Academy within the stipulated joining period and the vacancy created due to the resignation is not wasted.

Bench opined that,

“Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.”

As far as the late induction period is concerned, the same is provided in the instructions dated 26-07-2000. It states that in the OTA, late induction can be approved only for a period of three weeks. In the present matter the time for issuing a joining letter was not available.

 It is settled law that successful candidates, even if there is vacancy, do not acquire any indefensible right to be appointed; their only right is to be considered for appointment, though at the same time the appointment cannot be denied arbitrarily and whimsically (Refer: State of Haryana v Subhash Chander Marwaha, (1974) 3 SCC 220).

Lastly, the High Court held that the plea of the petitioner that he be allowed to join the training to the next course could not be accepted as the respondents explained that there was no procedure of carrying forward of a vacancy to the next course.

In view of the above, present petition was dismissed.[Sanskar Sharma v. Union of India,  2021 SCC OnLine Del 4277, decided on 3-09-2021]


Advocates before the Court:

For the Petitioner: Indra Sen Singh, Kritika Chhatwal, Advs.

For the Respondents: Rashmi Bansal, SCGC

Rajat Bhatia,

Manpreet Kaur Bhasin, Advs

News

Resignation


Justice Dama Seshadri Naidu has tendered his resignation from the office of Judge, Bombay High Court, in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from is 18th August, 2021 afternoon.


Ministry of Law and Justice

[Notification dt. 3-09-2021]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J., addressed the instant petition against the order of State whereby the petitioner’s application for voluntary retirement was treated as an application for resignation.

On 31-10-2005 the petitioner filed an application to the Secretary, Health Department, stating therein that due to certain personal and family reasons the petitioner was not in a position to discharge his official duty with responsibility. Hence, he may be permitted to retire voluntarily with effect from 01-02-2006. Since, the petitioner had not completed 20 years of service for retiral benefit, the petitioner made further prayer in the said application that the intervening period between 01-11-2005 to 31-01-2006 be treated as a period spent on extra-ordinary leave.

The technical difficulty in allowing voluntary retirement was that the petitioner had not completed 30 years qualifying service or attained 50 years of age on the date of application for voluntary retirement as required by Rule 74(b) of the Bihar Service Code. The respondent initiated a departmental proceeding against the petitioner on the ground that the petitioner was absent from duty without any permission of the authority and was reportedly engaged in services of some other State. Consequently, the respondent treated the application of the petitioner as an application of resignation without any rhyme or reason or any such averment in the application.

Noticing that the authorities did not take any decision on the prayer of the petitioner for voluntary retirement made in the year 2006 till 2013 and in 2013 the petitioner was fulfilling the conditions for voluntary retirement as per Rule 74(b) of the Bihar Service Code and had already completed 50 years of his age for qualifying to make prayer for voluntary retirement., the Bench stated,

“Either the authorities should have accepted the prayer of the petitioner or would have rejected the same in toto but they could not have treated the same as application of resignation.”

Therefore, it was held that the act of respondent suffered from arbitrariness and takes away the valuable legal right of the petitioner which made it unsustainable in law.  Hence, the impugned order was quashed. The respondents were directed to treat the prayer of the petitioner as prayer for voluntary retirement with all the retiral benefits according to law which would be effective from the date of the impugned order, i.e., 02-01-2013. [Vinoy Singh v. State Of Bihar, CW No. 1556 of 2019, decided on 19-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Appointments & TransfersNews

Justice Sunil Kumar Awasthi has tendered his resignation from the office of Judge, Madhya Pradesh High Court, in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from 02-01-2021. Department of Justice, Ministry of Law &  Justice has issued today a notification in this regard.

Shri Justice Sunil Kumar Awasthi,  joined Judicial Service on October 15, 1985, as Civil Judge Class Il and served in various capacities at different places as a Judicial Officer. He was appointed as an Additional Judge of the Madhya Pradesh High Court on October 13, 2016, and as Permanent Judge on March 17, 2018.


Ministry of Law and Justice

[Press Release dt. 29-01-2021]

[Source: PIB]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court:The Division Bench of Ravi Shanker Jha, CJ. and Arun Palli, J., upheld the impugned order of Single Judge whereby, the Single Judge had held that the appellant is not entitled to pensionary benefits as he has resigned from service.

The petitioner joined the services of Punjab National Bank in the year 1963 and due to personal reasons, after rendering 25 years of service; he submitted his resignation on 05-01-1988, which was accepted belatedly by the bank on 14-10-1991 with effect from 05-02-1988. Petitioner requested the Bank to release his retiral benefits including gratuity, provident fund, leave encashment, sick leave salary and arrears of increments. The claim of the petitioner had been resisted by the Bank in view of Regulation 22(1) of the Punjab National Bank(Employees’)Pension Regulations, 1995, Which is extracted herein below:-

22. Forfeiture of service(1) Resignation or dismissal or removal or termination of an employee from service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.”

The Single Judge while considering the issue of pension relied on the judgment of Supreme Court rendered in Senior Divisional Manager, Life Insurance Corporation of India v.. Shree Lal Meena, (2019) 4 SCC 479, and Uco Bank v. Sanwar Mal, 2004(4) SCC 412, wherein, the Court had held that, In a self financing scheme, a separate fund is earmarked as the Scheme is not based on budgetary support but on adequate contributions from the members of the fund. Retirement is allowed only on completion of qualifying service which is not there in the case of resignation. When such a retiree opts for self financing Pension Scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under the Provident Fund Rules whereas a person who resigns may not have adequate credit balance to his provident fund account. Similarly, the pension payable to the beneficiaries under the Scheme would depend on income accruing on investments and unless there is adequate corpus, the Scheme may not be workable and, therefore, Regulation 22 prescribes a disqualification to dismissed employees and employees who have resigned.

 On the basis of above-mentioned precedent, the Single Judge had held that there was no doubt that the petitioner had invited the forfeiture of pension by his own conduct and, therefore, no interference was called for by the Court to that extent. However, regarding the other claims, the Court observed that the same had been withheld by the Bank without any plausible explanation.  Therefore, the Court had directed the Bank to make requisite calculations and give benefits of all the retiral benefits except pension, to the petitioner by reckoning his date of resignation as 14-10-1991. The petitioner was also granted interest at 8% per annum on the amount, which was found due and payable to him.

In the light of above, the Bench dismissed the appeal holding that it did not find any reason to interfere with the order passed by the Single Judge, as the Single Judge had already granted adequate relief to the appellant. [Kanwar Kesri Singh v. Punjab National Bank, 2020 SCC OnLine P&H 2359, decided on 19-02-2020]

National Company Law Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Tribunal (NCLT): The Coram of Dr Deepti Mukesh (Judicial Member) and Sumita Purkayastha (Technical Member), reiterated that any shortfall in gratuity payable to employees has to be made over by the Resolution Professional and payment of dues has to be paid outside the waterfall mechanism provided under Section 53 of the Insolvency and Bankruptcy Code, 2016.

The instant application was filed by Sandeep Tyagi on behalf of 52 Ex-Employees of MOSER BAER ELECTRONICS LTD. who sought directions to release the lawful dues of the ex-employees who submitted their resignation prior to the initiation of the CIRP process.

FACTS

Facts pertaining to the present case are that the Corporate Debtor is a wholly-owned subsidiary of MOSER BAER INDIA LIMITED. It is stated that all the employees were forced to resign by the ex-management by March 2019. Further, it was stated that, they were not paid their dues.

The dues were not settled by the ex-management of the Corporate Debtor citing financial instability.

As an application for CIRP was preferred by Autonix Lighting Private Limited (Operational Creditor) under Section 9 of the IBC on account of default. Mr Hemant Sharma was appointed at the Interim Resolution Professional of the Corporate Debtor.

Applicant stated that the Corporate debtor did not deposit Provident Fund till their dates of resignation respectively. The salary slips of the ex-employees show that Provident Fund was deducted every month but admittedly it was not deposited with the EPFO.

Applicant relied on the decision of Principal Bench in CA (PB) No. 19 (PB) of 2019 dated 19-03-2019 filed by the Moser Baer Karamchari Union of the MOSERBAER INDIA LIMITED (Holding Company) against the Resolution Professional in CP No. (IB) 378(PB)/2017 Alchemist Asset Reconstruction Co. Ltd. v. Moser Baer India Limited for release of their dues.

It was observed that the above-stated Order dated 19-03-2019 of the Adjudicating Authority had been challenged before the Appellate Authority. In the Order dated 19-08-2019, the Appellate Authority upheld the same and stated the following:

“Para 24- Once the liquidation estate/asset of the Corporate Debtor under Section 36(1) read with Section 36(3), do not include all sum due to any workman and employees from the provident fund, the pension fund and the gratuity fund, for the purpose of distribution of assets under Section 53, the provident fund, the pension fund and the gratuity fund cannot be included.

Para 25- The Adjudicating Authority having come to such finding that the aforesaid funds i.e., the provident fund, the pension fund and the gratuity fund do not come within the meaning of liquidation estate’ for the purpose of distribution of assets under Section 53. we find no ground to interfere with the impugned order dated 19th March, 2019.”

Bench while parting with the decision held that it would like to fall in line with the ratio laid down by the Principal Bench:

“…any shortfall in gratuity has to be made over by the Resolution Professional and payments of the dues has to be paid outside the waterfall mechanism.”

Bench directed the Resolution Professional to release the dues of the ex-employees and deposit the Provident Fund with EPFO and release Gratuity dues forthwith.[Autonix Lighting Industries (P) Ltd. v. Moser Baer Electronics Ltd., 2020 SCC OnLine NCLT 1111, decided on 19-11-2020]


Advocates for parties:

For Resolution Professional: Milan Singh

For Applicant: Advocate Swarnendu Chatterjee


Ed. Note: See, however, the judgment of NCLAT in Savan Godiwala v. Apalla Siva Kumar, 2020 SCC OnLine NCLAT 191.

Appointments & TransfersNews

The President has accepted the resignation of Shri Girish Chandra Murmu as Lieutenant Governor of Jammu and Kashmir.

2. The President has been pleased to appoint Shri Manoj Sinha, to be the Lieutenant Governor of Jammu and Kashmir with effect from the date he assumes charge of his office vice Shri Girish Chandra Murmu.


Press Communique

[Dt. 06-08-2020]

Rashtrapati Bhavan


Image credits: The Indian Express

Appointments & TransfersNews

Justice Sangita Dhingra Sehgal has tendered her resignation from the office of Judge, Delhi High Court, in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from 30th May, 2020.

Heres’ the Notification: NOTIFICATION


Ministry of Law and Justice

Notification dt. 21-05-2020

Appointments & TransfersNews

Justice Satyaranjan Chandrashekhar Dharmadhikari tendered his resignation from the Office of Judge, Bombay High Court in pursuance of proviso (a) to clause (1) of Article 217 of the Constitution, with effect from 15-02-2020.


Ministry of Law and Justice

[Notification dt. 26-02-2020]

Hot Off The PressNews

As reported by PTI,

The second senior-most Judge of the Bombay High Court has tendered his resignation.

On Friday, Justice Dharmadhikari told a lawyer in his court that he has resigned.

He made the announcement when the lawyer, Mathew Nedumpara, mentioned a petition seeking for the court to hear it next week.

“I have demitted the office. Today is my last day,” Justice Dharmadhikari told in the court.

Justice Dharmadhikari, who was made judge of the Bombay High Court on 14-11-2003, was in line to be elevated as Chief Justice.


[Source: PTI]

Jharkhand High Court
Hot Off The PressNews

Resignation of Justice Anant Bijay Singh 

Justice Anant Bijay Singh has tendered his resignation from the office of Judge, Jharkhand High Court, with effect from 20-01-2020.


Ministry of Law and Justice

[Notification dt. 24-01-2020]

Legislation UpdatesNotifications

S.O. 202(E).—Shri Justice Dilip Babasaheb Bhosale, Member (Judicial), Lokpal has tendered his resignation from the office of Member (Judicial), Lokpal in pursuance of proviso (a) to Section 6 of the Lokpal and Lokayuktas Act, 2013 with effect from the afternoon of 12-01-2020.


Ministry of Personnel, Public Grievances and Pensions

[Notification dt. 14-01-2020]

Legislation UpdatesNotifications

The President is pleased to accept the resignation of Shri Kaushik Chanda, Senior Advocate from the position of Additional Solicitor General of India for the High Court of Calcutta with effect from 20-09-2019.


Ministry of Law and Justice

[Notification dt. 06-11-2019]

Hot Off The PressNews

F.No. J-11013/3/2017-Judicial (Part-2)—The President is pleased to accept the resignation of Shri Prabhuling K. Navadgi, Senior Advocate from the position of Additional Solicitor General of India for the High Court of Karnataka with effect from 16-09-2019.


Ministry of Law and Justice

[Notification dt. 19-09-2019]