salary

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar ,CJ and Shaji P. Chaly, J. dismissed a writ petition on account of maintenance expenditure incurred by school even during lockdown.

The petitioners in the present case are students of Sree Buddha Central School who filed the instant petition seeking to direct the State Government to issue directions to the School for providing quality online/virtual class using modern video conferencing techniques along with charging only monthly tuition fees and to ensure that no student is denied the same on the reason of failure to pay fees.

The counsel of the petitioners Manu Ramchandran and Sameer M. Nair submitted while referring to Rule 29 of the Kerala Education Rules, 1959 that respondent school is a recognized school and, therefore, cannot charge fees more than the prescribed as schools can only charge fees to the extent of the expenses for running it and the levy of fees is to be without any profit motive.  He further submitted that during the lockdown from March to May, 2020, schools were closed and online classes commenced only from June 2020. Students have been asked to pay tuition fees for the above said period also wherein such digital classes were in the form of poor quality education as it was given through voice notes on whatsapp instead of proper and quality based online classes.

The counsels for the respondents were Surin George IPE, S. Nirmal, R.T. Pradeep, M. Bindudas and K.C. Harish. It was submitted by the respondent school that the school is only levying the fees charged on the former year without enhancing a single pie. It was further submitted that teaching, non teaching staff and IT professionals who were engaged in training teachers about online classes have to be paid their monthly salary, no matter whether there was lock down or not.

The Court, on hearing both sides observed that no separate annual fee was demanded by the respondent school whereas the fees charged for the previous year and the current year is same and there is no change in the same. Hence, the Court further accepting the argument that monthly salaries for the teaching and non-teaching staff has to be paid, found no irregularity or illegality in the actions of the respondents.

In view of the above facts and arguments, the petition was dismissed. [Sreelekshmi S. v. State of Kerala, 2020 SCC OnLine Ker 2494 , decided on 30-06-2020]

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and P. Krishna Bhat, J. asked the State Government to consider a manner in which help can be extended to ‘Archaks’ who are not being paid regular salary as there is no income to temples in the present lockdown situation due to COVID-19.

Additional Advocate General placed the memo dated 26th may, 2020 enclosing therewith the State Government’s Order dated 20th May, 2020. Further he added that temple in ‘C’ category are entitled to yearly grant of Rs 48,000 and the first installment had been ordered for release by the 20th May, 2020 Order.

Bench stated that, State Government will have to consider in what manner help can be extended to Archaks who cannot be paid regular salary as there is no income to the temples of ‘C’ category in the present situation.

For which petitioners counsel submitted that in some areas, ration in the form if Archak Kits have been distributed. Additional Advocate General to this stated that 14,000 Archak Kits had been distributed.

Bench asked the State Government to make a statement on whether Archak Kits can be supplied to all Archaks working in category ‘C’ temples.

Petition is listed on 3rd June, 2020. [Shreehari Kutsa v. State of Karnataka, WP No. 6932 of 2020, decided on 27-05-2020]

COVID 19Hot Off The PressNews

In a letter written to all Heads/Managers of private unaided recognised schools, Binay Bhushan, Director of Education, NCT of Delhi, reminded them that in accordance with provisions of Delhi School Education Act and Rules, 1973, they are under direct control of Charitable Society/Trusts. Being Charitable Societies/Trusts, they are supposed to indulge in charity, especially when they are engaged in the noble field of providing education to the society ? without indulging in profiteering. Accordingly, they are also supposed to extend their maxim support (to those parents who are in financial distress at this time and unable to pay the school fee) by providing learning material online to all students without any discrimination and hindrance and also by not charging any increased tuition fee or any other fee by creating any new head.        

The Director of Education has written a letter to all Heads/Managers of private unaided recognised schools and gave them various directions regarding charging of and/or increase in fee from students, access to online education facilities for students, as well as payment of salary to teaching and non-teaching staff.

The letter stated that it has been noticed that some private unaided schools have been violating the provisions of Delhi School Education Act and Rules, 1973 and other guidelines issued by Department of Education, as also the provisions of Disaster Management Act, 2005 and Delhi Epidemic Diseases, COVID-19 Regulations, 2020 under the Epidemic Diseases Act, 1897 for prevention and containment o fCOVID-19 presently in force.

It was noticed that some schools have increased the fee in academic session 2020-2021; some schools are charging fee under new heads; some schools are indulging in malpractices while making available online courses/material; some schools are not paying salary to teaching and non-teaching staff.

In view of the above, the Director of Education directed all Heads/Managers of private unaided recognised schools as follows:

(i) No fee, except Tuition fee, shall be charged from the parents, till further orders.

(ii) Heads of schools shall not demand and collect the Tuition fee from the parents/students on quarterly basis. The fee shall be collected on monthly basis only.

(iii) Not to increase any fee in the academic session 2020-2021 till further directions irrespective of the fact whether or not the school is running on private land or the land allotted by DDA/other Government land owning agencies.

(iv) Schools running on the land allotted by DDA/other Government land owning agencies with the condition to seek approval of Director (Education) before any fee increase, shall collect the Tuition fee on the basis of last fee structure approved by Director (Education) or as per fee statement filed by them under Section 17(3) of DSEAR, 1973 during academic session 2015-2016.

(v) Shall ensure to provide thee access of online education/material/classes to all students, without any discrimination, by providing them ID and password immediately to get them online education facility.

(vi) Heads of schools shall, in no case, deny ID and password to those students/parents for getting online access of education facilities/classes/materials, etc., to those students who are unable to pay the school fee due to financial crises arising out of closure of business activities in the ongoing lockdown condition.

(vii) Managing Committee of the schools/Heads of the schools shall not put extra financial burden by creating any new head of fee.

(viii) Shall neither stop payment of monthly salary nor reduce the existing total emolument to the teaching and non-teaching staff of their schools in the name of non-availability of funds and arrange the funds in case of any shortfalls from the Society/Trust running the school.

It was also made clear that failure to comply with the above directions shall incite action under Delhi School Education Act and Rules, 1973 and Penal Code, 1860 as also punishment of imprisonment and/or fine under Section 51(b) of the Disaster Management Act, 2005.

Directorate of Education

Govt. of NCT of Delhi

[F.No. PS/DE/2020/54]

[Order dt. 17-04-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ. and Mohammad Nawaz, J. directed the state government to refund the amount already deducted from the salaries of judicial officers by the end of February 2020.

The New Defined Contributory Pension Scheme was made operational to the State Government employees from 01.04.2010. This was made applicable to those employees who joined the services on or after 01.04.2006. The scheme provided for employees’ contribution of 10% of the basic pay and dearness allowance (DA) with the matching contribution from the State Government. The first petitioner is an association of the Judicial Officers in the State. The first relief claimed was for issuing a writ of mandamus seeking a direction against the respondents to clarify whether the New Pension Scheme is applicable to Judicial Officers. A writ of mandamus was also sought for directing the State of Karnataka to continue with the old pension scheme.

In a connected writ, the State Government based its submission on the Karnataka Judicial Services (Recruitment) Rules, 2004.Karnataka Civil Services Rules which are deemed to have been made under the Karnataka Civil Services Act, 1978, govern the pension payable to the government servants. It was submitted that except to the extent of the recommendations of the first and second Judicial Pay Commissions, the Judicial Officers are government servants. Karnataka Judicial Services (Recruitment) Rules, 2004 were made under Article 309 read with 233, 234 and 235 of the Constitution of India and therefore, all the Judicial Officers are civil servants.  Therefore, no merit remains in the writ petition.

Counsel for the petitioners, Shashi Kiran Shetty submitted that separate pay Commissions, the First National Judicial Pay Commission (popularly known as Justice Shetty Commission) as well as the recommendations made by the Second National Judicial Pay Commission (popularly known as Justice Padmanabhan Commission) were established to consider and recommend the pay and allowances payable to the Judicial Officers and the recommendations made by both the Commissions were accepted by the Supreme Court by issuing necessary directions to all the State Governments to implement the same. The submission, in short, was that the pay of the Judicial Officers is governed by the Orders of the Apex Court accepting both the reports with modifications and therefore, the act of applying the new pension scheme which requires 10% deduction from the salary of the Judicial Officers is completely in gross violation of the directions issued by the Supreme Court.

Additional Advocate General, R. Subramanya submitted that as the payment of pension is concerned, the Judicial Officers are equivalent to the Government Servants except to an extent of certain modifications made by the first and second National Judicial Pay Commissions. He submitted that in the above mentioned Rules 2004, the word ‘service’ has been defined as ‘Karnataka State Judicial Services’ and, therefore, all the rules regulating conditions of service of the members of the State Civil Service are applicable to the Judicial Officers as well. He further submitted that in All India Judges’ Association v. Union of India, (2002) 4 SCC 274, Supreme Court appointed Second Judicial Commission headed by Justice Padmanabhan. It had recommended for continuation of the pension fixed by the First National Judicial Pay Commission at the rate of 50% of the average emoluments drawn during the 10 months preceding the age of superannuation. 

In view of the above, the Court observed that State Government, without seeking permission of the Supreme Court, has no power to tinkle with the quantum of the salaries and pension payable to the Judicial Officers. As noted earlier, the new pension scheme contemplates contribution of 10% of the basic salary and dearness allowance by the Judicial Officers and the said amount will be deducted from the salary of the Judicial Officers. Thus, looking from any angle, the act of the State Government in applying the new pension scheme to the Judicial Officers of the State appointed after 1st April 2010 and consequential act of making 10% deductions from their salary is not only completely against the recommendations of the two National Judicial Pay Commissions Report but also in breach and gross violation of the directions issued by the Supreme Court and hence, the same is illegal. 

In a similar case of Vihar Durve v. State of Maharashtra, 2017 SCC Online Bom 7560, deduction of 10% of the basic salary of the Judicial Officers was challenged before a Division Bench of the Bombay High Court and the said challenge was upheld by the Bombay High Court. 

Therefore, Government Order bearing No. FD (SPL) 04 PET 2005, of 31st March 2006 (Annexure-A in Writ Petition No.44240 of 2013) is not applicable to the Judicial Officers of the Karnataka cadre.[Vijayakumar Rai v. State of Karnataka, 2019 SCC OnLine Kar 2186, decided on 28-11-2019]

Case BriefsForeign Courts

Supreme Court of United Kingdom: Full Bench of Lady Hale (President), Lord Reed (Deputy President), Lord Hodge, Lady Black and Lord Kitchin, JJ., examined the considerations to be taken into account when deciding whether it is appropriate to award compensation to an employee for an invention made during employment. The instant appeal was filed by Professor Ian Shank (appellant) for compensation under Section 40 of Patents Act, 1977 for an invention made by him in 1982 that was granted patent and which provided benefit to his employer Unilever UK Central Resource Ltd. (3rd respondent/ CRL).

Appellant was the inventor of technology used in glucose testing for diabetics while he was employed at CRL, a wholly-owned subsidiary of Unilever Plc. In October 1982, Shank built the first prototype and was known as ECFD. Appellant accepted that right of his invention belonged to CRL from Section 39(1) of Patents Act, 1977 later these rights were given to Universal Plc. Universal Plc filed for the patents application for both ECFD and FCFD technologies. Since Universal was not interested in developing business so they did little to develop ECFD. Appellant left Unilever in October 1986.

The appellant represented by Patrick Green submitted that court didn’t consider that CRL was appellant employer and the entire Unilever Group can’t be considered as CRL undertaking. The argument was made it is impossible for an employee to establish benefits from the patent of a business and it will also be unjust to employ employee inventors.

The respondent represented by Daniel Alexander submitted that CRL should not be considered as undertaking because it never generated any material revenue and was neither the beneficiary of royalties in question. It was merely a service company for Unilever Group.

The exact amount of the compensation is to be determined in accordance with Section 41 of the Patents Act, which requires that the employee is awarded a “fair share” of the benefit which the employer has derived (or may reasonably be expected to derive) from the invention and/or the patent. To determine what constitutes a “fair share”, Section 41(4) of the Act provides a number of matters that must be taken into account, including the nature of the employee’s duties and remuneration, the effort and skill which the employee has devoted to making the invention, the contribution of other employees (be they joint inventors or not) and the contribution of the employer to the making, developing and working of the invention by the provision of advice, facilities and other assistance, opportunities, and managerial and commercial skill.

The Court analysed overall profit and turnover of Unilever Group and found there was an extreme disparity in numerical terms between the amount that Unilever received and the salary that the appellant was paid. It opined that the correct approach is to determine the part played by the size and success of the employer’s business as a whole in securing the benefit from the invention. Shank patent had produced a very high rate of return and Unilever made a small effort to commercialise it. Unilever had generated benefits from Shank’s patent.

The appeal of Professor Shank was allowed and it was held that Universal and CRL had an outstanding benefit from the patents of Shank and fair share was not given to appellant. Professor Shanks was awarded £2m compensation, roughly a 5 per cent share of the £24m benefit derived by Unilever from the invention, uplifted from 1999 at an average inflation rate of 2.8 per cent. [Shanks v. Unilever Plc, [2019] 1 WLR 5997, decided on 23-10-2019]

Legislation UpdatesRules & Regulations

G.S.R. 682(E).— In exercise of the powers conferred by sub-section (1) and sub-section (2) of Section 469 of the Companies Act, 2013(18 of 2013), the Central Government hereby makes the following rules further to amend the National Company Law Tribunal (Salary, Allowances and other Terms and Conditions of Service of President and other Members) Rules, 2015 namely :—

1. (1) These rules may be called the National Company Law Tribunal (Salary, Allowances and other Terms and Conditions of Service of President and other Members) Amendment Rules, 2019.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the National Company Law Tribunal (Salary, Allowances and other terms and conditions of service of President and other Members) Rules, 2015, after Rule 15, the following rule shall be inserted, namely:—

“15 A. Posting and transfer of Members — (1) Initial posting of a Member shall be done by the Central Government in consultation with the President.

(2) Subsequent transfers to different Benches shall be done by the President having regard ordinarily to the following:—

(a) the capacity or otherwise of the Member for the purpose of his posting, including his efficiency, disposal and other relevant factors;

     (b) a Member save and except for sufficient and cogent reasons shall not be posted at a place where he had earlier been practising as an Advocate or a Chartered Accountant, Company Secretary or Cost Accountant, as the case may be;

(c) a Member may not be posted at a place where any of his parents, spouse or other close relation is practising as an Advocate or a Chartered Accountant, Company Secretary or Cost Accountant in Company Law matters;

(d) save and except for sufficient and cogent reasons, the Member shall not be posted at a place for a period exceeding three years, and ordinarily, a Member may not be posted at a place where he was earlier posted unless a period of two years has elapsed;

(e) ordinarily, a Member shall not be transferred before completion of three years at a station except on administrative grounds or on a personal request basis.

(3) Transfer on personal request basis shall include considerations such as serious medical grounds, serious dislocation in children’s education, unavoidable family responsibilities; however, consideration of transfer on personal request shall be subject to consideration of factors enumerated in sub-rule (2).

(4) Transfer on administrative grounds shall be made only in consultation with the Central Government.”

Ministry of Corporate Affairs

[Notification dt. 23-09-2019]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Ajai Lamba, C.J. and Achintya Malla Bujor Barua, J., ordered the Customs department to speed up the process of testing the seized consignment and costs to be deducted from the salary of the concerned persons if the process of the Court was delayed any further.

The Customs Authority was ordered to ascertain whether the biosecurity requirement of the Country had been satisfied in respect of the seized areca nuts, and a report was to be submitted by them. For this purpose, it was directed that the Customs authorities/DRI Guwahati shall take possession of some samples of the areca nuts which were with the Police authorities of Assam.

The Customs Authorities/DRI, Guwahati were required to comply with the aforementioned order, however, their response was absolutely lukewarm towards the direction issued by the Court. Since the Customs Department had been enjoined with the duty of complying with the order, the needful was required to be done at all costs.

Considering the conduct of the respondents, the Court by order notified the Customs Department that in case active steps were not taken; and representative samples were not collected from all the 26 trucks and not forwarded to the Laboratory, cost in the sum of Rs 20,000 would be deducted from the salary of the Additional Director General, Customs, Guwahati for delaying the process of the Court. This direction was issued considering that the recovered articles were perishable in nature. [Ali Trading v. State of Assam, 2019 SCC OnLine Gau 5133, decided on 15-11-2019]

Case BriefsHigh Courts

Patna High Court: Madhuresh Prasad, J. disposed of the writ petition on the ground that the petitioner was not incarcerated when joining was offered.

The petitioner was a Peon in the respondent bank. An FIR was lodged against the petitioner, his son and other family members alleging offences under Sections 304-B read with Section 34 of the Penal Code, 1860. The allegations led to the conviction of the petitioner. Later, the petitioner was granted bail and released from custody. He then submitted for his joining in the bank but was subsequently served with a notice of proposed punishment of dismissal by the respondent bank. The petitioner thus filed the instant proceedings.

During the pendency of the instant writ proceeding, the petitioner was dismissed on account of his conviction in the criminal case by the bank in view of the provisions contained in the Regulations 39 and 40. The petitioner had preferred a criminal appeal against the conviction order and the impugned order was set aside but he had already crossed the age of retirement by then.

The petitioner in view of the developments during pendency had sought for quashing of the order dismissing him from service and also prayed that he may be granted benefits of payment of salary from the date on which he offered joining. The counsel    Shashi Bhushan Kumar-Manglam representing the petitioner relied on the Judgment of the Apex Court in the case of Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Body, Himmat Narayan, (1996) 11 SCC 603, according to which the petitioner was entitled to grant of salary from the date on which he offered to join in the bank after his release on bail as thereafter he had been prevented from working by the authorities on account of their non acceptance of petitioner’s joining.

Advocates Prabhakar Jha and Mukund Mohan Jha, representing the bank submitted that the scheme of the Regulations which governed terms and conditions of the petitioner’s services make it abundantly clear that conviction by itself was a disqualification to continue in service. The mere fact of conviction was sufficient to dismiss an employee dispensing with the requirement of compliance with the principles of natural justice. He even referred to the same judgment relied on by petitioner’s Counsel to submit that it was only upon his acquittal in the criminal charges that the disqualification was removed.

The Court held that such an offer of joining, post acquittal which if not acceded to by the respondent authority, may ensue to the petitioner to claim salary. The petitioner’s status was of a convict at the time of submitting for joining and as such his claim for payment of salary for the period subsequent to such joining was not sustainable in the eyes of law.

It was further held that there was no disqualification against the grant of post-retirement benefits as was available under the service regulation.

In view of the above-noted facts, the instant petition was disposed of accordingly with the observation that the respondent Bank was to consider and dispose of the claim and pay the admissible dues within three months with regard to the retrial benefits of the petitioner. [Tarkeshwa Pandey v. Uttar Bihar Gramin Bank, 2019 SCC OnLine Pat 1924, decided on 16-10-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga J., allowed the application for the payment of the pay and allowances when petitioner was working on ad hoc basis.

A writ in the nature of mandamus was filed directing the respondent to pay along with other allowances and other service benefits equal/admissible to other employees regularly employed as Hindi Teachers.

The briefs facts of the case were that the petitioner was appointed on a temporary basis as the Hindi teacher and her duties and responsibilities were same as that of the other teacher appointed on regular basis. However, on completion of session, the services of the petitioner were terminated. The vacancy was again advertised and thus the petitioner joined the service without the issuance of the appointment letter and was continuing till the filing of the present writ petition.

R.L. Sharma, counsel for the petitioner submits that the policy of the respondents was against the principle of ‘equal pay for equal work’ as upheld by Courts in various judgments. She stated that having been given the same duties and responsibilities as the other Hindi Teacher, any discrimination with regard to her pay is in violation of Article 14 and 16 of the Constitution of India. Thus as the petitioner was serving the respondent-school since 1989 and was entitled to all the benefits being given to the other teachers. Reliance was placed on the case of Rattan Lal v. State of Haryana, (1985) 4 SCC 43, wherein it has been held that hire and fire policy being adopted in case of ad-hoc teachers is in violation of Articles 14 and 16 of the Constitution of India.

Counsel for the respondent submits that the school was a grant-in-aid minority institution and there was only one sanctioned post of Hindi teacher. It was conceded that the petitioner had been working in the respondent-school for the past decade albeit on a temporary basis. She was never appointed as Hindi teacher and was given various classes as and when the need arose. Hence, it was stated that she cannot claim parity with Hindi teacher working on a sanctioned post. It was also submitted that the terms of service of the petitioner were clear and specific and that the claim of the petitioner on par with the other teachers of the schools was wrong and cannot be allowed.

The Court opined that the prayer of the petitioner to the extent of being paid her salary and allowances and other benefits for the period of vacations/ weekends, as admissible to the other teachers employed in the school is fair and reasonable. It was further opined that respondent had exploited the vulnerability by throughout indulging in adhocism to deny the petitioner her legitimate dues on the ostensible ground of being a minority institute and the post of Hindi Teacher being a non-aided one against which the petitioner services were availed. Thus it was held that as per the principles of equal pay for equal work, the petitioner is entitled for regular scale as pay of Hindi Teacher as is being granted to another Hindi Teacher by the respondents besides other service benefits thereof and thus directed the respondent to calculate all the pay and allowances along with the arrears of salary for weekends and during the summer vacations.[Swaranjit Kaur v. Sri Guru Gobind Singh Senior Secondary School, Chandigarh; 2019 SCC OnLine P&H 1373; decided on 01-08-2019]

Case BriefsHigh Courts

Bombay High Court: Providing relief to a lone Mumbai Port Trust employee who refused to link his salary account to Aadhaar, a Division Bench comprising of Akhil Kureshi and SJ Kathawala, JJ. has directed the trust to release his salary which was pending for over 30 months. The Court added interest of 7.5% per annum for delaying/withholding the payment of salary.

In December 2015, the Trust had issued a circular directing all employees to register their Aadhaar, failing which salary will not be credited to their account. The petitioner refused and approached the court to appeal for withdrawal of this circular. At this time, another petition was going on in the Supreme Court challenging the linking of Aadhaar with various schemes and payments. The respondent side contended that out of 800 employees, the petitioner was the sole employee who had objected to the linking.

The Court held, that even as a sole objector he had the right to dissent and the Port Trust had not been able to justify by what authority they were upholding his salary just because the matter was pending in the Supreme Court. Now that the Supreme Court has released its verdict in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the trust should waste no more time in releasing his dues along with the penalty of interest for withholding the salary without any authority. [Ramesh R. Kurhade v. Financial Advisor and Chief Accounts Officer, Establishment Section, 2019 SCC OnLine Bom 1060, decided on 20-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. contemplated a writ petition under Article 226 of the Constitution of India, where the petition sought the total salary from the date of suspension i.e. 03-12-2016 to 28-06-2018 to be paid along with quashing of an order passed earlier.

The counsel for the petitioner submitted that petitioner worked as Panchayat Secretary in Gram Panchayat Khatakiya, and was placed under suspension by an order passed in 2016 and since the charge sheet was not issued within the period of 45/90 days of the suspension order therefore by a subsequent order the suspension of the petitioner was revoked. However, full salary for the period of suspension had not been paid to the petitioner although he had been paid subsistence allowance. Subsequently, a charge sheet was served in 2017 a penalty of stoppage of one increment for a period of one year without cumulative effect was imposed and it had been held that the period of suspension shall be treated as “No work no pay” and the petitioner shall not be entitled to any other salary.

Against the order passed by the disciplinary authority, the petitioner had  filed an appeal before the Commissioner, Gwalior Division, which was returned back with a direction to the petitioner to present the same before the competent authority and accordingly the petitioner had filed an appeal before the Commissioner, Panchayat Raj, Madhya Pradesh which was  pending. It was submitted that as the appeal was pending, therefore, the petitioner was suffering from financial loss and under these circumstances, the appellate authority/Respondent 2 may be directed to decide the appeal as early as possible without any delay.

It was directed by the Court to consider the appeal of the petitioner as early as possible because of the losses he was suffering from.[Deewan Singh Kushwah v. State of M.P, 2019 SCC OnLine MP 1274, decided on 01-04-2019]

Case BriefsHigh Courts

Rajasthan High Court:  Ashok Kumar Gaur, J., allowed the application on the ground that so long the interim order was passed by the court the respondent can not absolve itself from the responsibility of payment of salary to the petitioner.

An application was made by the petitioner for seeking direction against the respondents to release monthly salary. 

Narendra Kumar Meena, counsel for the petitioner submitted that the court had passed an interim order and directed the respondent to allow the petitioner to continue on the post of Security Guard. The petitioner thus joined the service as per the court’s order and was working continuously till date. It was submitted that in spite of continuous working of the petitioner the salary was not being released by the respondents. Thus, the application. 

Sandeep Kalwaniya, counsel for the respondent submitted that the contract period of the petitioner had already been expired and thus the respondent was not responsible to make any payment to the petitioner. 

The court after the submission of the parties held that order was passed by the court giving direction to the petitioner to continue on the post of a security guard and thus the respondent was liable to pay the salary to the petitioner same as he was getting on the date of the termination of the service. The court further held that if the decision of the not engaging any security guard in the office was taken by the respondent the same should be apprised to this court by filing an affidavit. Thus the court allowed the application and directed to “make payment of the salary to the petitioner directly from the date of his joining till date and payment will also be made on month to month basis till the interim order continues”.[Ramavtar Bunkar v. State of Rajasthan,  2019 SCC OnLine Raj 822, decided on 09-05-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Sanjeev Kumar, J., disposed of the petition filed against the order of transfer and for release of salary for a certain period with the instruction to pay the salary to the employee for the period the petitioner claimed to have performed his duties. The order of transfer was upheld.

The facts of the case were that the petitioner was transferred from Chadoora to Handwara. The petitioner challenged the impugned order on the ground that his salary for the period when he was working as Junior Engineer in Kupwara was released either by the PHE Division, Kupwara, or the PHE Division, Chadoora. The petitioner was actually relieved after a few months of his transfer notice.  While the petitioner was working in PHE Division Kupwara, his salary for the period from August, 2016 to April, 2017 was not released on account of non-availability of requisite funds in the Division.

The Court held that the challenge to the transfer order should fail because the order was passed in the interest of administration. The petitioner had no right to remain posted at a particular place indefinitely or for a specified period. With regard to release of salary of pay, the Court held that the petitioner cannot be denied the hard-earned salary on any count, if he has worked. The paucity of funds cannot be an excuse to deny the salary to a Government employee. [Ghulam Hassan Khawja v. State of J&K, 2019 SCC OnLine J&K 243, Order dated 07-03-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Gita Mittal, CJ and Sanjeev Kumar, J. dismissed the appeal filed against the order wherein a direction to the appellants was given to consider the case of the respondent which was in relation to his unreleased salary.

The facts of the case are that the respondent (writ petitioner) was working as a daily rated worker with the appellants in the position of a Helper. The respondent was absent from duty from October 1986 and that despite issuance of a notice, he did not report for duties. The appellants claimed that the respondent submitted his resignation in 1987 which was sent to the higher authorities for instructions. However, this resignation did not culminate in any final order of acceptance. Even otherwise, the appellants were unable to support this assertion on their part for the reason that they were unable to produce any record relating to this resignation. The respondent thus disputed the fact of having given any resignation. The respondent was compelled to file a writ petition for the reason that his salary was not released.

The Court held that the appellants had not passed any formal order of termination of the services of the respondent thus the directions made in the writ petition by the impugned order were fully justified and could not be faulted on any legally tenable ground. It was also directed that for the period the respondent remained unauthorizedly absent from duty, he would not be paid salary. The appeal was thus dismissed. [Power Development Deptt. v. Javaid Ahmad Mir, 2018 SCC OnLine J&K 1047, Order dated 14-02-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. quashed an office order denying payment of salary to the aggrieved petitioner whose appointment was disputed.

In the present matter, appointment of the petitioner as a teacher and his counseling by the District Teachers Employment Appellate Authority was under cloud. The Appellate Authority, on consideration of the entire facts, directed employment unit to take steps to ensure counseling of the petitioner. However, petitioner’s claim for payment of his salary was rejected on the ground that legality and validity of his appointment was under dispute. Hence, the instant petition.

The Court observed that as the petitioner was regularly working for respondent and they were taking benefit of his work, therefore he was entitled to his full salary. At the highest, on the basis of Appellate Authority’s observations, respondents might take an appropriate decision; but without taking any such decision against the petitioner, denial of his salary was impermissible. It was noted that there was no finding as to the invalidity of petitioner’s appointment. In view thereof, the petition was allowed directing the respondents to pay arrears of salary to the petitioner for the period that he had actually worked until a further decision as to the validity of his appointment is was reached. [Akhilesh Pandey v. State of Bihar, 2018 SCC OnLine Pat 2160, decided on 03-12-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: This appeal was filed before a Single Judge Bench of Rohit Arya, J., under Section 173 of the Motor Vehicles Act, 1988 against the impugned order passed by Motor Accidents Claims Tribunal (Shajapur).

Facts of the case were that deceased met with an accident caused by the rash and negligent driving of respondent thereby causing their death. The respondent’s vehicle was insured with Insurance Company (Respondent 3). The claimant brought before Court the salary earned by deceased at the time of his death i.e. Rs 3,500. The claimant suffered not only the loss of love and affection of their family member but also financial constraints. The claimants were aggrieved by the meager compensation awarded by the Tribunal and prayed for its enhancement. The issue before the court was whether the compensation awarded by Tribunal of Rs 2,41,000 was justified.

Insurance company supported the award of compensation passed by Tribunal to be just, appropriate and proper with no requirement of enhancement. The High Court was of the view that impugned award was not assessed properly, being on the lower side it needed to be enhanced taking into consideration the age, dependency of the deceased and his future prospects. Court found it appropriate to deduct 1/3 instead of 1/2 towards personal expenses of the deceased. On viewing that Tribunal did not award compensation under the head ‘future prospects’, compensation was granted under the above head. Therefore, the appeal was allowed and award of compensation was enhanced to Rs 2,44,000. [Samrat v. Manish,2018 SCC OnLine MP 833, order dated 16-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J., disposed of a writ petition whereby absorption in government service was allowed irrespective of the source of salary paid.

Intra-Court appeals which arose out of a common and same set of judgments were filed before the High Court. It was contended by the respondent that the appellant issued a notification whereby it decided to take over a college where he was working as a lecturer on a regular basis and hence the services of teaching and non teaching staff were taken over of which he was denied the benefit which calls for discrimination under Articles 14 and 16 of the Constitution of India. In the second case, the claim was rejected as the respondent was not recruited through an open competitive selection process but covered a considerable time at her employment.

The appellant contended that since the salary the respondent receives was by Self-Financing Scheme and not Grant-in-Aid released by the Department of Education, therefore she fell out of the scope of benefit.

The Court came to the conclusion that acquisition of a college was required in a larger public interest and thus the source of payment was not a consideration with both kind of employees forming a homogeneous class and no artificial discrimination could be made amongst them and hence the respondent stood absorbed in the service. For the second case, the respondent was allowed service on account of sympathetic consideration. However, such absorption will be on notional basis and she will be entitled to salary from the date of actual appointment. The appeals were disposed of accordingly.[State of H.P v. Kamlesh Kumar,2018 SCC OnLine HP 1581, decided on 30-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Hima Kohli and Pratibha Rani, JJ., listed a writ petition before it for next hearing on 14.03.2018. The petitioner was recruited in the SSB on the post of GD/Ct on 01.02.2006 and while on employ had undergone a surgery for a kidney transplant on 18.03.2015. The present petition was for the issuance of a writ of mandamus for release of a sum of Rs. 11,21,716 which was incurred by him on his surgery and to treat a previous loan of Rs. 6 lakhs extended to him from the SSB, Central Welfare Fund as an amount sanctioned for medical expenses incurred.

The petitioner claimed that from July, 2017 onwards, the respondents had started to deduct Rs. 30,000 from his salary every month in an arbitrary manner. The counsel for the respondents argued that the loan which was given to the petitioner had it’s first installment of Rs. 10,000 due in February, 2015. Further, the counsel argued that the petitioner deposited five installments totaling a sum of Rs. 40,000 between 06.07.2016 to 08.06.2017 before abruptly stopping the installments. Upon a notice being served, the petitioner requested via reply dated 03.08.2017, that monthly installments be deducted from his salary and he be given six months’ time to pay the entire amount and it was under this request that deductions were effected.

The Court asked the respondents to produce rules which permit the respondents to make such hefty deductions for recovery of loan. The Addl. DG, SSB was also directed to file an affidavit explaining the circumstances and rule position which empower the respondents to deduct over 80% of the petitioner’s salary on his defaulting in paying back the loan amount. The said affidavit was directed to be filed within four weeks with a copy to the learned counsel for petitioner. The Court noted that the respondents had not deducted any amount from the petitioner’s salary for the month of January, 2018, further directing the respondents to not deduct any amount till the next date of hearing. [Manish Kumar v. Union of India,  2018 SCC OnLine Del 7218, decided on 06.02.2018]