Case BriefsDistrict Court

Saket Courts, New Delhi: Naresh Kumar Laka, Additional District Judge – 03 decided a matter wherein an employee claimed full back wages from the date he was terminated till the date of his superannuation.

On being aggrieved by the decision of Tis Hazari Court, both parties preferred separate appeals under Section 96 CPC.

Factual Background

Plaintiff was appointed by the defendant as Law Officer (Taxation). The services of the plaintiff were confirmed with the defendant, and it was alleged that the defendant company did not allow the plaintiff to enter into premises of the defendant company and the plaintiff was informed that the defendant company terminated his services with immediate effect.

Analysis, Law and Decision

Court stated that none of the trial court judgments granted any relief of full back wages to the plaintiff.

Main contention was that the plaintiff was not granted full back wages from the date of his termination till the date of his superannuation, and he also claimed other service benefits.

In the instant case, the termination letter provided that the services of the plaintiff were terminated due to business exigencies and administrative reasons and, therefore, it cannot be said that the termination of the plaintiff was the infliction of punishment.

Retrenchment 

Bench stated that the termination by way of retrenchment can be for any reason whatsoever.

Apart from the issue of definition, what is critical is that an employer must carry out retrenchment (other than dismissal on grounds of misconduct), as per the requirements of Section 25F of the ID Act. Section 25F provides for the employer to fulfill certain conditions before retrenching any employee.

Trial Court had noted that notice of termination was not served upon the plaintiff, therefore, plaintiff was not retrenched properly as per the procedure provided in the ID Act. Court added that although the ID Act does not apply to the plaintiff, yet an analogy can be drawn about the course of action to be followed in that eventuality.

Bench expressed that if the case of the plaintiff is presumed to be covered within the ambit of ID Act, in that case the plaintiff will not be entitled to automatic reinstatement or full back wages.

How will the compensation of plaintiff be assessed?

In view of absence of applicability of any special statute, the compensation can be assessed as per the contract of a master and servant read with Sections 73 and 74 of the Indian Contract Act, 1872.

It was noted that, the appointment letter of the plaintiff provided a clause of severing of the contract by either side upon serving one month’s notice or on payment of one month’s salary in lieu of notice period.

Plaintiff’s counsel had contended that the defendant had admitted liability of Rs 5,46,737 and the said admission was upheld by ADJ as well as the Delhi High Court. Defendant’s counsel stated that the said amount was shown as a contingent liability.

The word “Contingent” shows that there was no admission of the liability of the defendant and the said amount of Rs 5,46,737 was shown as an estimated or guessed or contingent liability which may or may not arise. Further, the said amount of Rs 5,46,737 could not be said to be estimated towards making payment of the plaintiff only and rather it would include the expenses for litigation, court fees, advocate’s fees etc. for contesting the claim of the plaintiff in different courts of law.

Court held that mere mentioning of the said amount before a third party/agency cannot be treated as an admission against the defendant. Hence, Trial Court treating the said amount as an admission is illegal and not as per the established principles of law of evidence.

Bench decided that the plaintiff was entitled only to one month’s salary as per the original employment contract for one month’s notice period besides the other service dues which had been decided by the trial court.

With regard to plaintiff claim of DA, HRS, Bonus, LTA and Gratuity, Court stated that when it was already held that plaintiff was not entitled or full back wages, he cannot be said to be entitled to the said reliefs. Further, HRA, LTA are permissible only when a person is into service which is not the case in the present matter. The Bonus and Gratuity can be claimed from the competent authority as prescribed in the Bonus Act and Gratuity Act as per law. The amount already received by the plaintiff is deductible and excess, if any, to be refunded to the defendant within 30 days.

In view of the above discussion, appeal were disposed of. [Ashok Gupta v. Modi Rubber Limited, RCA No. 25 of 2020, decided on 17-11-2021]

Case BriefsHigh Courts

Allahabad High Court: Siddhartha Verma, J. reiterated the law laid down by the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd., (2007) 2 SCC 513, wherein it was decided that when a workman is employed for a particular project then the services of that employee came to an end as soon as the project was over and he could not be given permanent status. It was also held that shortfall of period of notice or compensation, after completion of the project would not render the termination bad on that count.

The instant writ petition was filed challenging the award passed by the Labour Court. The petitioner was employed by the Indian Railway Construction International Ltd. initially as a peon on casual basis for period of six months by the order of the Project Manager, Vindhya Nagar. After completion of such service, the petitioner was re-employed on monthly basis and was attached with Anpara Project. This was done by the order of Regional Manager IRCON – Anpara. He continued for four years in this arrangement, after which he was brought in the regular scale. Thereafter, he was transferred to another Rihand Nagar Project. However, subsequently, his services were dispensed with. The petitioner raised an industrial dispute praying for reinstatement with back wages pursuant to which the Labour Court passed the order which was challenged by the petitioner in the instant writ petition.

At the outset, the Court noted that several other workmen of the Company who were found surplus and their services were also dispensed with, had filed writ petitions before the High Court. After moving to and fro, the case ultimately reached for decision in appeal before the Supreme Court in Lal Mohammad v. Indian Railway Construction Co. Ltd., (2007) 2 SCC 513. The Supreme Court found that the petitioners were not entitled to be regularised in the services of the Company as they were not employees of the company. It, however, held that the petitioners were entitled to compensation and thereafter the appeals were dismissed.

The petitioner in the instant writ petition claimed that his case was different from the case of Lal Mohammad. However, after hearing the parties and perusing the written arguments and also going through the award, the High Court found that no interference was warranted in the award of the Labour Court. It was observed:

“The Supreme Court in the case reported in Lal Mohammad v. Indian Railway Construction Co. Ltd., (2007) 2 SCC 513 has categorically laid down that when a workman is employed for a particular project, the services of that employee came to an end when the project was over and, therefore, could not be given a permanent status. It has also held that the workman could not be considered as employee of the company under which various other projects ran.”

The High Court also found that there was similarity in the case of the instant petitioner and the case already decided. Under such circumstances, the writ petition was dismissed. [Bipin v. Union of India, 2021 SCC OnLine All 787, dated 25-10-2021]

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that the decision of the Labour Court should not be based on mere hypothesis and it cannot overturn the decision of the management on ipse dixit. Stating that Labour Court’s jurisdiction under Section 11-A of the Industrial Dispute Act, 1947 although is a wide one but it must be judiciously exercised, the Court said,

“Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinize or analyse the evidence but what is important is how it does so.”

Factual Background

  • The respondent-­workman was dismissed from his services by the Standard Chartered Bank for drunkenness within the premises of the appellant-Bank and for manhandling and assaulting the senior officers and also hurling abuses at the management. The alleged delinquency had been committed on 12th January,1988.
  • The enquiry officer after holding enquiry in terms of the Bipartite Settlement and after due compliance of the principles of natural justice held the charges proved against the delinquent respondent and the disciplinary authority after due compliance, confirmed the finding recorded by the enquiry officer and punished him with the penalty of dismissal from service by an order dated 22nd August, 1991.
  • The Industrial Tribunal, However, revisited the record of enquiry and apprised the statement of the management witnesses and recorded a finding that the Bank management has “miserably failed” to establish the charges levelled against the respondent-workman and hence, set aside the order of dismissal from service and directed the appellant to reinstate the respondent-workman in service with full back wages, seniority and all the consequential   benefits attached to the post by its Award dated 14th September, 2006.
  • The High Court also upheld the said order.
  • The respondent-workman had attained the age of superannuation on 31st January, 2012 and during the period of litigation, he has throughout been paid his last wages drawn in terms of Section 17¬B of the Act 1947. The respondent-workman had been paid around Rs. 57 Lakhs.
  • The Supreme Court had, on 27th February, 2015, stayed the payment of back wages.

Analysis

It was argued that after the domestic enquiry was held to be fair and proper, the Tribunal has a limited scope to interfere with the findings recorded in the domestic enquiry and unless the finding is perverse and not supported by a piece of evidence, it was not open for the tribunal to interfere within the scope of Section 11¬A of the Industrial Disputes Act, 1947,

The Court noticed that once domestic enquiry was held it to be fair and proper, the Tribunal had a very limited scope to interfere in the domestic enquiry to the extent as to whether there is any apparent perversity in the finding of fact which has been recorded by the enquiry officer in his report of enquiry obviously, based on the evidence recorded during the course of enquiry and as to whether the compliance of the Bipartite Settlement which provides the procedure of holding enquiry is violated or the punishment levelled against the workman commensurate with the nature of allegation proved against him. However, if the punishment is grossly disproportionate, the tribunal will always be justified to interfere by invoking its statutory power under Section 11-A of the Act 1947.

“The scope of judicial review in the matter of domestic enquiry is to examine whether the procedure in holding domestic enquiry has been violated or the principles of natural justice has been complied with, or any perversity in the finding of guilt recorded during the course of domestic enquiry has been committed.”

The Court noticed that the Tribunal has converted itself into a Court of Appeal as an appellate authority and has exceeded its jurisdiction while appreciating the finding recorded in the course of domestic enquiry and tested on the broad principles of charge to be proved beyond reasonable doubt which is a test in the criminal justice system and has completely forgotten the fact that the domestic enquiry is to be tested on the principles of preponderance of probabilities and if a piece of evidence is on record which could support the charge which has been levelled against the delinquent unless it is per se   unsustainable or perverse, ordinarily is not to be interfered by the Tribunal, more so when the domestic enquiry has been held to be fair and proper.

The Court, hence, held that the Tribunal has completely overlooked and exceeded its jurisdiction while interfering with the finding recorded during the course of enquiry in furtherance of which, the respondent was dismissed from service and the High Court has also committed a manifest error while passing the judgment impugned.

However, looking to the peculiar facts of this case where the respondent-workman had been paid Rs.57,16,517.72 and had attained the age of superannuation on 31st January, 2012, stay was granted by this Court in reference to back wages by order 27th February, 2015, while upholding the order of penalty of dismissal from service dated 22nd  August, 1991 passed by the authority in the domestic enquiry, the Court directed that no recovery shall be made in reference to the payment which has been made over to the workman in the interregnum period.

[Standard Chartered Bank v. RC Srivastava, 2021 SCC OnLine SC 830, decided on 29.09.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: In a case where an employee of the Rajasthan Rajya Vidyut Prasaran Nigam had suppressed the material facts of conviction in a case of trivial nature and penalty at the time of applying for the post, the bench of MR Shah* and AS Bopanna, JJ, has held that the reinstating such a person will be wholly untenable and unjustified as the question in such cases is of trust.

“The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case.”

Brief Facts

  • The respondent was appointed to the post of Technical Helper. The appointment of the respondent was subject to production of a character certification/verification report issued by the Superintendent of Police of the concerned District where he belongs.
  • On 5.8.2013, he was convicted by the Trial Court for the offences under Sections 341 and 323 IPC, however, given the benefit under the Probation of Offenders Act, 1958.
  • The respondent suppressed the material facts of conviction and penalty at the time of applying for the post in 2013 and also submitting a false declaration at the time of documents verification on 14.04.2015
  • While giving the benefit of Act 1958, the respondent-employee was ordered to be released on probation for good conduct.
  • Even subsequently such conviction of the respondent was confirmed, however, the Sessions Judge vide judgment dated 09.09.2015 granted the benefit of Section 12 of the Act 1958 to the respondent-employee which provides that a person shall not suffer disqualification attaching to the conviction.
  • On 06.05.2016, the respondent was terminated from the services for non-disclosure of material facts.

Some important judgments on employer’s right to terminate employee for non-disclosure of material facts

Secretary, Department of Home Secretary, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746

When a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service.

Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363

The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. It is further observed that the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information and in that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103

An employee can be discharged from service or a prospective employee may be refused employment on the ground of … suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).

Avtar Singh v. Union of India, (2016) 8 SCC 471

Even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.

Ruling

The Court took note of the important fact that on the date of submitting an application and even at the time when declaration was filed on 14.04.2015, there was already an order of conviction against him. Even at the relevant time, the benefit of Section 12 of the Act 1958 was not granted to the respondent, which was given subsequently vide judgment of the Sessions Court dated 09.09.2015.

Further, from the judgment and order passed by the Sessions Court, it appeared that only submission on behalf of the respondent was with respect to granting the benefit of Section 12 of the Act 1958, hence, only with a view to get out of the disqualification of conviction, belatedly he preferred an appeal and obtained the order of granting the benefit of Section 12 of the Act 1958.

“Even otherwise, it is required to be noted that on getting the benefit of Section 12 of the Act 1958 subsequently by that itself the respondent 12 cannot get away of the allegations of suppression of material fact and filing a false declaration that neither any criminal case is pending against him nor he has been convicted by any court of law, which was filed on 14.04.2015.”

The Court held that if the correct facts would have been disclosed, the employer might not have appointed him. The question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee.

“The choice/option whether to continue or not to continue such an employee always must be given to the employer. (…) such an employee cannot claim the appointment and/or continue to be in service as a matter of right.”

The Court, hence, held that, both, the Division Bench as well as the Single Judge have clearly erred in quashing and setting aside the order of termination terminating the services of the respondent on the ground of having obtained an appointment by suppressing material fact and filing a false declaration. The order of reinstatement is wholly untenable and unjustified.

[Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya, 2021 SCC OnLine SC 739, decided on 17.09.2021]

______________________________________________________________

Counsels:

Senior Advocate Dr. Manish Singhvi, for appellants

Advocate Navin Prakash, for respondent-employee


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Sanjiv Khanna, JJ has held that reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law.

The ruling came in the matter where,

  • A Clerk-cum-Cashier was dismissed by the Allahabad Bank, alleging his involvement in the incident relating to burning of relevant Bank records.
  • The respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991.
  • The Industrial Tribunal–cum–Labour Court found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. However, on the ground that a case is made out by the management of loss of confidence, ordered payment of compensation of Rs.30,000/- in lieu of reinstatement.
  • The respondent, aggrieved by the award of the Industrial Tribunal–cum–Labour Court, seeking reinstatement with back wages, carried the matter to the High Court wherein it was held that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. The High Court, hence, directed reinstatement with all consequential benefits.
  • The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation.

Considering the aforementioned facts and circumstances, the Supreme Court held,

“Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court.”

Noticing that reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law, the Court held that in the present case, the ends of justice would be met by awarding lump sum monetary compensation. It, hence, directed payment of lump sum compensation of Rs.15 lakhs to the respondent, within a period of eight weeks, failing which, the respondent will be entitled for interest @ 6% per annum, till payment.

[Allahabad Bank v. Krishan Pal Singh, 2021 SCC OnLine SC 751, decided on 20.09.2021]

______________________________________________

Appearances before the Court:

For Bank: Advocate Rajesh Kumar Gautam

For Respondent: Advocate Rakesh Taneja


*Judgment by: Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga, J., had directed to maintain status quo and not to appoint anyone on the post of the petitioner who had been allegedly terminated due to his suspected participation in farmer’s protest in New Delhi.

The petitioner was appointed to the post of Senior Treatment Supervisor (STS) under National Rural Health Mission (NRHM) by Civil Surgeon-cum-Chairman, Executive Committee, District Health and Family Welfare, Mewat. The petitioner contended that he had been serving uninterruptedly since 2014.  In spite of that, merely on a vague allegation/suspicion of the petitioner having participated in the strike call given by farmers in Delhi on 05-02-2021, his services had been summarily terminated by the impugned order dated 25-02-2021 without holding any inquiry and giving any show-cause notice or opportunity of being hear in-person to the petitioner. To justify the delay in approaching the Court, the petitioner contended that due to current pandemic scenario, he was earlier unable to challenge the impugned termination order as the Courts were working under certain restrictions.

In the light of the above submissions, the Bench passed an interim order directing the State to keep the post of Senior Treatment Supervisor which was earlier manned by the petitioner vacant.[Rajuddin v. State of Haryana, CWP No. 10642 of 2021, decided on 28-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Advocate Mohd. Arshad

For the State of Haryana: DAG, Saurabh Mohunta

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna J. set aside the impugned order and allowed the petition. 

Facts

The facts of the case are such that the second respondent issued a notification inviting applications for the post of Project Information Officer on contract basis. Petitioner finding herself eligible applied, selected and was appointed as Project Information Officer on contract basis with effect from 27.11.2009. The contract was being renewed from time to time on an annual basis and the latest renewal of such contract was on 01.04.2019 to be in operation upto 31.03.2020. The petitioner is thus in service for 10 years now albeit on contract basis. During the subsistence of the aforesaid period of contract, the petitioner by an application dated 11.06.2019, sought maternity leave. On the application given by the petitioner, a notice was issued on 25.06.2019, by the second respondent directing her to report to duties forthwith, despite her application seeking maternity leave. When the petitioner did not report back to duties, despite the notice on 25.06.2019, referring to the same, an order dated 29.08.2019 was passed terminating the service of the petitioner / canceling the contract entered into with the petitioner appointing her as a Project Information Officer on the ground that the petitioner remained absent. Assailing this order instant petition was filed.

Arguments

Counsel for the petitioners submitted that that denial of maternity leave and terminating or cancellation of the employment of any employee on that ground is contrary to law.

Counsel for the respondents submitted that the petitioner was a contract employee and contract itself gave a right to the second respondent to terminate her services at any point in time and seek to justify the notice impugned.

Issue

Whether a contract employee is entitled to maternity leave under the Maternity Benefit Act, 1961?

Observations

Rights of women and children recognized by United Nations

  1. Article 1 of Universal declaration of Human Rights is ‘all human beings are born free and have equal dignity and rights’ these are inalienable.
  2. Article 42 of the Constitution of India depicts that the State shall make provision for securing just human conditions for work and maternity relief. Therefore, the right of seeking maternity relief by way of leaves springs from Article 42 of the Constitution of India.
  3. Article 45 of the Constitution of India directs that the State shall endeavor to provide early child care and education for all children until they complete six years.

All these form part of Part IV of the Constitution i.e., Directive Principles of State Policy. The Court relied on Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 wherein it was held

“The directive principles which are fundamentals in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all.”

The Court thus observed that therefore, the State and its instrumentalities cannot deny its obligation to perform its duty as enshrined in the aforesaid Articles.

The Court further relied on Municipal Corpn. of Delhi v. Female Workers, (2000) 3 SCC 224 wherein it was held :

  1. It is in the background of the provisions contained in Article 39, specially in Articles 42 and 43, that the claim of the respondents for maternity benefit and the action of the petitioner in denying that benefit to its women employees has to be scrutinised so as to determine whether the denial of maternity benefit by the petitioner is justified in law or not.
  2. Since Article 42 specifically speaks of “just and humane conditions of work” and “maternity relief”, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of.
  3. Section 12 Maternity Benefit Act, 1961, which contains a very significant prohibition in regard to the service of a woman employee, provides as under:

“12. Dismissal during absence or pregnancy.—(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

  1. This section prohibits dismissal of a woman employee during or on account of her absence on maternity leave. It ensures that the conditions of her service would not be varied to her disadvantage during her absence.
  2. Contravention of the provisions of this Act has been made an offence under Section 21 of the Act which provides as under:

“21. Penalty for contravention of Act by employer.—(1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees:

  1. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily-wage basis.

The Maternity Benefit Act, 1961, has now undergone certain amendments,      relevant paras of which are extracted hereunder for the purpose for ready reference.

“THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017

 (A) In sub-section (3) – (i) For the words “twelve weeks of which not more than six weeks”, the words “twenty-six weeks of which not more than eight weeks” shall be substituted.

(ii) after sub-section (3) and before the first proviso, the following proviso shall be inserted, namely:- “Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery,”;

 (5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.”

The Court thus observed that the Amendment Act of 2017, a pregnant woman is entitled to maternity leave for a period of 26 weeks which would come to 6 months and 15 days. It was further observed the petitioner was entitled to maternity leave of six months in all in terms of the amended Act of 2017. The action of the second respondent cannot be countenanced, as maternity or the Act does not classify or qualify a mother to be, a government servant, temporary employee, employee on contract basis or an employee on daily wages. The order impugned infers such a harrowing classification.

The Court held that “the writ petition deserves to succeed and it is a fit case where, apart from granting back wages to the petitioner, in the peculiar facts, the second respondent will have to be mulcted with exemplary costs.”

In view of the above, petition was allowed.[B. S. Rajeshwari v. State of Karnataka, Writ Petition No.10677 of 2020, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Kameswar Rao, J., decided a petition wherein on the invocation of the arbitration clause, one of the parties appointed the sole arbitrator on its own.

The instant petition was filed under Section 11(6) of the Arbitration and Conciliation Act, 1996. Petitioner and the respondents entered into a lease deed in respect of the premises.

It has been stated that pursuant to the execution of the lease deed, petitioner started fulfilling the obligations on the assumption that the respondents will also do the same and disbursed an amount of Rs 3,32,000 to the respondents in order to expedite the refurbishment and up-gradation of the premises to make it at par with the petitioner’s benchmark.

Due to the pandemic, petitioner sought to invoke the force majeure clause in the Lease Deed.

Even after repeated communications and grant of time as sought by the respondents, the respondents failed to furnish the complete set of documents as mandated under Clause 11.2.1 of the Lease Deed.

While the above-stated breach was being cured, respondents suddenly and to complete shock and dismay of the petitioner issued a letter demanding a sum of money by misrepresenting the clauses of the Lease Deed.

Respondents invoked arbitration clause citing the existence of disputes under the lease deed and nominated a Retired Judge of this Court as the Sole Arbitrator.

 Issue for consideration:

Whether the appointment of the arbitrator was at variance with the stipulation in the contract and as such non-est for this Court to grant the relief to the petitioner by appointing a new arbitrator?

Decision

  1. DISPUTE RESOLUTION- Any dispute or controversy arising out of or in connection with the Deed or its performance, including the validity, interpretation or application hereof, shall to the extent possible be settled amicably by negotiation and discussion among the Parties within 30 (thirty) days as of the date requested by either Party. Failing which, either Party shall be at liberty to refer the matter to arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996. The arbitral panel shall consist of a sole arbitrator appointed mutually by the Parties. Any arbitral award issued by such sole arbitrator shall be final and binding on the Parties. The language of the arbitration shall be English and seat of arbitration shall be Delhi.”

(Emphasis supplied )

As per the arbitration clause contained in the deed, the arbitrator has to be appointed mutually by both the parties. In the present case, sole arbitrator was appointed by the respondent but was not confirmed by the petitioner.

Respondents should have approached the Court under Section 11 of the Act seeking an appointment of an Arbitrator when the same has not been confirmed.

Hence, the appointment is declared to be non-est.

Bench relied upon the Supreme Court decision in Walter Bau Ag. v. MCGM (2015) 3 SCC 800 and Naveen Kandhai v. Jai Mahal Hotels (P) Ltd., Arb. P. 53 of 2017.

With regard to the significance of adherence to the procedure agreed upon by the parties to an arbitration agreement with regard mutual/common consent in appointing an arbitrator, Court relied upon the decision of Manish Chibber

 While allowing the petition, Justice S.P. Garg, a retired Judge of this Court was appointed as the sole arbitrator to adjudicate the disputes and differences between the parties arising out of the lease deed. [Oyo Hotels and Homes (P) Ltd. v. Rajan Tewari,  2021 SCC OnLine Del 446, decided on 09-02-2021]


Advocates for the parties:

Petitioner: Jeevan Ballav Panda, Adv. with Satakshi Sood & Satish Padhi, Advs.

Respondents: Bobby Anand, Advocate

Case Briefs

Calcutta High Court: A Division Bench of Harish Tandon and Hiranmay Bhattacharyya JJ., while allowing the present appeal, discusses upon the essentials of granting an injunction order in light of the settled precedents.

Background

The defendant in a suit for infringement of copyright has preferred the instant first miscellaneous appeal challenging the order dated 20-08-2020, passed by the District Judge at Alipore in Title Suit No. 6 of 2020. The facts leading to the present appeal are categorically mentioned hereunder;

  1. The author who is the appellant herein entered into a publishing and copyright agreement with the publisher being the respondent on 24-11-2017.
  2. The respondent filed a suit alleging illegal termination of the aforesaid agreement by the appellant through an e-mail dated 01-06-2020. It was further alleged that the appellant herein through her advocate’s letter dated 20-07-2020, threatened to institute legal proceedings against the respondent before the appropriate forum.
  3. The respondent further claims that the appellant herein threatened to publish the books through other publishers which compelled the respondent to pray for an order of injunction restraining the appellant from giving any effect to the e-mail dated 01-06-2020 and the letter dated 20-06-2020 by filing an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.
  4. The Trial Judge, by the order impugned, restrained the defendant/appellant from taking any steps pursuant to the letter dated 01-06-2020 as well as the letter dated 20-07-2020 till 25-09-2020.
  5. Being aggrieved against the aforesaid order, the instant appeal has been preferred.

 Contentions

Saptansu Basu, Senior Advocate appearing for the appellant assails the impugned order on the following grounds. Firstly, the principles laid down by Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, has not been followed by the court below while passing the ex-parte order of injunction. Secondly, no order of injunction can be passed restraining a person from instituting a proceeding before a court of law. Lastly, the respondent may, at best, be entitled to damages in the event the court finds that the notice period as mentioned in the termination letter falls short of the required notice period as per the agreement in question. Reliance was further placed on Indian Oil Corporation Ltd. v. Amritsar Gas Service, (1991) 1 SCC 533 in support of such submission.

Aritra Basu, Advocate for the respondent submitted that the agreement dated 24-11- 2017 contains a termination clause which provides that 90 days notice is mandatory before terminating the agreement by the appellant herein. It was further submitted that since the termination letter has been issued by the appellant, in violation of the said agreement, the same cannot be given effect to and the court below was perfectly justified in passing an order of injunction. Furthermore, Section 42 of the Specific Relief Act, 1963, empowers the court to grant an injunction directing the appellant to perform the negative agreement by issuing a 90 clear days notice for termination of the agreement in the instant case even if the court is unable to compel the specific performance of the agreement. Reliance was placed on the judgment of KSL Industries v. National Textiles Corporation Limited, OMP 581 of 2010 decided on 14-08-2012 and Madras High Court judgment in Base International Holdings v. Pallava Hotels Corpn. Ltd., 1998 SCC OnLine Mad 614, so to emphasize that an order of injunction can still be passed in case the notice period mentioned in the termination notice is in violation of the termination clause mentioned in the agreement.

 Observation

The Court, identifying the crux of the matter, said that the agreement shall remain in existence, unless terminated by a specific notice of termination. The bench further remarked that, since the contract is determinable in nature therefore it cannot be specifically enforced in view of Section 14(1) of the Specific Relief Act, 1963.

 “Section 41 of the Specific Relief Act provides that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. Since we are of the view that the contract in question is one, the performance of which could not be specifically enforced, the learned judge of the court below erred in law by passing an order of injunction in the instant case which would in effect amount to directing specific performance of the said agreement. Furthermore, no injunction can be passed restraining a party from instituting any proceeding in a court of law. The resultant effect of the order of injunction passed by the learned court below is a restraint upon the appellant from initiating any legal proceedings before a court of law which is not permissible in law.”

Rejecting the submission of the respondent, the Court said, “Section 42 of the Specific Relief Act operates in a totally different field and cannot be applied to the facts of the instant case. In the event the court at the time of trial is of the view that the respondent has suffered any injury due to short notice period, the respondent may be entitled to reliefs in accordance with law but that cannot be a ground for passing an order of injunction.”

With respect to the cases referred by the counsel for the Appellant, the Court agreed that the principles laid down by the Supreme Court in the case of Shiv Kumar Chadha has not been followed as the Trial Court judge did not record reasons for its opinion while passing the order of injunction. Further, it was observed that the ratio of the other two cases, namely, KSL and Base International cannot be applied in the present factual matrix as the circumstances essentially vary.

 Decision

Allowing the present appeal, the Court held that the Trial Judge below erred in law by passing an order of injunction.[Debarati Mukhopadhyay v. Book Farm, FMAT 369 of 2020 with IA No. CAN 1 of 2020 with IA No. CAN 2 of 2020]


Sakshi Shukla, Editorial Assistant ha sput this story together

Case BriefsHigh Courts

Karnataka High Court: P.B. Bajanthri, while allowing the present writ petition against the termination of services without any disciplinary enquiry, reiterated the settled precedents and further vested the liberty to conduct the said enquiry, now, with the respondent authority, in accordance with law.

Brief Facts

The facts of the case are enumerated hereunder;

  1. That petitioner was working as a bill collector in Hinkal Gram Panchayat, Mysuru Taluk, Karnataka.
  2. That the petitioner was terminated from the said position, on the basis of certain allegations relating to demand and acceptance of bribe pursuant to the trap proceedings conducted by the Lokayukta Police.
  3. That the instant writ petition was brought against the resolution of termination, dated 21-10-2014 and communication of the same on 23-10-2014.
  4. That the petitioner was protected by an interim order during the pendency of the present petition.

Issue

  1. Whether the immediate termination order against the petitioner, without any further enquiry, justified by law?

Observation

  • The Court cited Delhi Transport Corporation v. DTC Mazdoor Congress, 1991 Supp (1) SCC 600, wherein the Supreme Court clarified the approach that should be followed by any executive authority in such cases, placing reliance on;

“264. Sukhdev v. Bhagatram, (1975) 1 SCC 421; The Constitution Bench of this Court put a nail in the coffin of the play of the private master’s power to hire and fire his employees and held that Regulations or Rules made under  a statute apply uniformly to everyone or to all members of the same group or class. They impose obligations on the statutory authorities who cannot deviate from the conditions of service and any deviation will be enforced through legal sanction of declaration by Courts to invalidate the actions in violation of the Rules or Regulations. The statutory bodies have no free hand in framing the terms or conditions of service of their employees. The regulations bind both the authorities and also the public. The powers of the statutory bodies are derived, controlled and restricted by the statutes which create them and the Rules and Regulations framed thereunder.

  1. (…) it is open to authorities to terminate the services of a temporary employee without holding an enquiry. But in view of the march of law made, viz., that it is not the form of the action but the substance of the order is to be looked into, it is open to the Court to lift the veil and pierce the impugned action to find whether the impugned action is the foundation to impose punishment or is only a motive. A larger bench of seven judges of this Court in Samsher Singh v. State of Punjab, (1974) 2 SCC 831 elaborately considered the question and laid down the rule in this regard. Whether no misconduct spurns the action or whether the services of a probationer are terminated without imputation of misconduct is the test. Termination simpliciter, either due to loss of confidence or unsuitability to the post may be a relevant factor to terminate the services of a probationer. But it must be hedged with a bona fide overall consideration of the previous conduct without being tainted with either mala fide or colorable exercise of power or for extraneous considerations.

Decision

While allowing the Writ Petition, the Court held that the petitioner successfully made a prima facie case against the respondent authority, so to quash the resolution dated 21-10-2014 and communication dated, 23-10-2014. The Court further vested the liberty to conduct a disciplinary enquiry at the behest of the respondents, in accordance with the law.[K.S. Puttaswamy v. State of Karnataka, 2020 SCC OnLine Kar 1631, Decided on 7-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Patna High Court: A Division Bench of Amreshwar Pratap Sahi, CJ and Ashutosh Kumar, J. disposed of the writ petition since no case was made out for the exercise of discretion under Article 226 of the Constitution of India.

The Attestation Form, with regard to the employment of the petitioner for the post of Assistant Central Intelligence Officer in the Intelligence Bureau, did not contain full particulars of his previous employment in the Intelligence Bureau Department itself where he had been earlier employed where his services had been terminated. The form had the requirement of disclosure of any employment either held by the candidate or any employment which may have been held by the candidate any time under the Central or State Government or Semi-Government or Quasi-Government body or an autonomous body or a Public Undertaking or a Private Firm or Institution.

The petitioner contended that the impugned order could not be supplemented by any reasons contained in the counter affidavit filed before the present Court and that non-supply of reasons in the order dispensing with the services of the petitioner and canceling his candidature could not be on the strength of a reason which had been brought forth through the counter affidavit. It was also contended that Clause 11(A) only created an obligation to disclose the employment that was held currently at the time of the submission of the Attestation Form.

The court held that a perusal of Clause 11(A) left no room for doubt that the requirement of disclosure obligated the candidate to furnish the entire information of any employment being held by him or having held any time an appointment of nature described therein. Non-disclosure of such a fact had a direct bearing on his employment. This fact of termination of employment in the same department, which is a highly sensitive department, therefore, could not be said to be a piece of information that was not required to be disclosed.

In view of the above-noted facts, the instant application was dismissed accordingly. [Chandra Shekhar Prasad v. Union of India, 2019 SCC OnLine Pat 1920, decided on 06-11-2019]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Sisira De Abrew, Prasanna Jayawardena and S. Thurairaja, JJ. entertained the instant appeal filed against the order of  Provincial High Court, where the judgment passed by the Labor Tribunal was reversed.

The factual matrix of the case was that one workman-respondent was employed with People’s Bank-appellant, where he was a member of the Trade Union. Several allegations of misconduct were filed against the respondent and he was terminated from his services from the said ground. The Labor Tribunal held that the termination was just and equitable and also found that during the course of his employment at the appellant’s establishment, the respondent had misconducted himself on several occasions, some of which included disobeying the orders of his superiors, misbehaving in the presence of customers and abusing his superiors using foul and obscene language.

Hence, the respondent against the order of the Tribunal filed an appeal in the High Court, where it was held that, ‘Respondent was “mentally retarded” and that owing to his mental retardation, he could not be held responsible for the alleged misconduct.’ Accordingly, the order of the Tribunal was set aside and the appeal was allowed, payment of compensation was ordered, equivalent to the salary of five years.

Thus, the Appellant-Bank filed the instant appeal aggrieved by the order of the High Court for payment of compensation and not holding respondent liable for the alleged misconduct. The Court observed that the theory advanced by the High Court was applicable when determining the criminal responsibility of a person in a criminal case. However, in cases involving an employer-employee relationship, such standards set out in criminal law cannot be applied since; such a relationship was founded on the principles of trust and discipline. It was further noted that, as a result, any breach of these principles affected, not only the relationship between the employer and the employee but also the quality of the services provided by the employer along with the reputation of his establishment.

It was further observed by the Court that, the respondent had, not only refused to obey the legitimate instructions of his superiors at several instances but had also insulted and humiliated a superior officer in the presence of customers and it is a general rule that refusal to obey reasonable orders justifies the dismissal from service. Hence, the order of the Tribunal was upheld and the judgment of the High Court was set aside on the ground that, higher standards which were applicable in criminal cases cannot be applied to cases before the Labor Tribunal. Thus, the termination order was maintainable.[People’s Bank v. Lanka Banku Sevaka Sangamaya, SC. Appeal No. 107 of 2010, decided on 09-07-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench of Madhuresh Prasad, J. allowed a civil writ petition filed by an employee seeking direction that execution of the new agreement by him would not deprive him of benefits available to him by way of the agreement executed earlier.

Petitioner, a Panchayat Rojgar Sevak, was terminated from his service on account of some allegations. The Collector, Muzaffarpur while considering the matter found that the allegations against him were technical in nature and that there was a recommendation of the Block Programme Officer, Muzaffarpur that he should be given benefit of doubt. As such, an order terminating petitioner’s services was set aside by the District Magistrate and the Deputy Development Commissioner, Muzaffarpur was directed to ensure that the petitioner is allowed to join as Panchayat Rojgar Sevak. Pursuant thereto the Deputy Development Commissioner directed the petitioner to execute a new agreement so that he may be allowed to resume his contractual engagement as Panchayat Rojgar Sevak.

The present petition was filed apprehending that if the petitioner executes a new agreement he would be deprived of the benefits of his earlier services if any is available to him or others similarly situated in the future.

The Court clarified that in the event such an agreement is executed since the order of the District Magistrate had set aside petitioner’s earlier termination order, therefore the benefits, if any, arising out of his contractual status prior to setting aside of his termination could not obliterate in any manner. [Sanjay Kumar v. State of Bihar, 2019 SCC OnLine Pat 35, decided on 10-01-2019]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Ashwani Kumar Mishra, J., dismissed a petition filed against termination of petitioner’s services.

The petitioner in this petition had challenged the order passed by the Commandant, Central Industrial Security Force, Midanapur, West Bengal whereby petitioners service was terminated while he was on probation. Respondent contended the maintainability of the case as no cause of action arose before the Allahabad High Court whereas petitioner submitted that since selection procedure were carried at Allahabad thus part of cause of action arises before the court. Respondent referred to a Division Bench decision of the Court in Sube Singh v. Union of India, Special Appeal No.107 of 2017 where it was observed that just because selection proceedings have occurred under the territorial jurisdiction of a court, that would not constitute a part of cause of action for maintaining a writ petition against the order of termination.

In light of the above submissions, the Court held that the petition was not maintainable as no cause of action arose in the territorial jurisdiction of the Allahabad High Court. [Pramod Kumar v. Union of India,2018 SCC OnLine All 1585, order dated 07-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Rakesh Kumar Jain, J., refused to grant permission to terminate pregnancy of a 14 year minor girl.

The facts of the case are that the petitioner is a father of a minor girl of 14 years of age who was raped and on that account an FIR was filed against the accused under Section 6 of the POCSO Act, 2012 and Sections 376(3) and 506 of Indian Penal Code. As soon as the pregnancy of the minor came into light, the petitioner approached the Court for termination of 28 weeks pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971 wherein permission of Court is required if the pregnancy is of more than 20 weeks.

Question before Court was whether if pregnancy of the minor is terminated, there would be danger to life of minor or not. Respondent Director, PGIMS Rohtak gave opinion according to which if pregnancy is terminated there could be grave risk to minor’s life. Petitioner even after apprehension of minor’s death pleaded the termination of pregnancy to be carried out. Court after hearing the parties refused to permit termination of pregnancy.

Petitioner asked for directions in light of the case of Shewata v. State of Haryana, 2015 SCC OnLine P&H 20442 wherein termination of pregnancy of a girl was rejected but directions were given by Court for the welfare of the girl. Court, therefore, issued directions to the Director, PGIMS Rohtak for the welfare of the minor. Some of the important directions are given here for reference. Direction to admit minor as an indoor patient with a private room was given. Minor was to be given medicines, food, clothes, and other facility and during delivery, minor should be personally monitored by the Head of the Department of Obstetrics and Gynaecology. Authorities of Medical College were supposed to ensure privacy and non-disclosure of her name to the public. With the above directions, this petition was disposed of. [Sikander v. State of Haryana, CWP No.21291 of 2018, decided on 28-08-2018]

Case BriefsSupreme Court

Supreme Court: Abhay Manohar Sapre, J. speaking for himself and Uday U. Lalit, J. allowed the appeal filed by Indian Oil Corpn. against the judgment passed by the Madras High Court whereby the appellant was directed to resume the fuel supply to respondent’s fuel station.

The parties entered into a dealership agreement whereunder the appellant was to supply fuel to the respondent. Subsequently, on inspection, the totaliser seal was found to be missing. Based on such deficiency the dealership agreement was terminated by the appellant. The respondent made a representation to the appellant against the termination which was rejected. The said decision was upheld by a Single Judge of Madras High Court. However, the Division Bench allowed the appeal of the respondent filed thereagainst and directed the appellant to resume the supply of fuel to the respondent. The instant appeal was filed against this judgment.

The Supreme Court, after considering the decisions of the lower court, held that the Division Bench ought not to have interfered with the decision of the Single Judge. The reasoning of the Single Judge were found correct by the Court. It was noted that the termination of dealership agreement was an administrative function of the appellant. Further, it was observed that High Court cannot interfere with the administrative function of the Indian Oil Corpn. (appellant) especially when the decision of the appellant was based on correct reasoning and there was no arbitrariness. Based on the discussion, the Supreme Court held that the decision of the  Division Bench could not be sustained. Accordingly, the appeal was allowed and order of the Single Judge was restored. [Indian Oil Corpn. Ltd. v. T. Natarajan,2018 SCC OnLine SC 698, dated 17-07-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: The vacation bench comprising of Vandana Kasrekar, J. allowed the writ petition filed by a rape victim for termination of her pregnancy.

The petitioner was an unmarried girl, who became pregnant as a result of rape committed on her. She was raped by the accused who initially expressed the desire to marry her, however afterwards, he refused. FIR was filed against the accused of the offence punishable under Section 376 IPC. During the investigation, MLC was conducted and it was found that the petitioner was carrying a pregnancy of 8-9 weeks. The petitioner submitted an application before the Additional Sessions Judge under Section 3 of Medical Termination of Pregnancy Act 1971, for termination of her pregnancy praying that she did not want to give birth to such unwarranted baby. The Additional Sessions Judge dismissed the application on the basis of the report of Respondent 6 that the petitioner was carrying a pregnancy of more than 10-11 weeks. Being aggrieved, the petitioner filed the instant writ.

The High Court, on 7-6-2018, had directed the Government Advocate to examine the petitioner before the District Medical Board. In pursuance of the said direction, the petitioner was examined by the District Medical Board on 11-6-2018. The report of the Board was placed on record by the learned Government Advocate. The Court perused the report and found that no such fact was mentioned in the report which would compel the Court not to grant relief to the petitioner. On the basis of the opinion of the Board, the High Court held that there was no impediment to order termination of petitioner’s pregnancy. Accordingly, the petition was allowed and the order passed by Additional Sessions Judge was set aside. The respondents were directed to provide proper medical facilities to the petitioner for terminating her pregnancy by a team of doctors. [‘X’ v. State of M.P., WP No. 12463 of 2018, decided on 14-06-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: In three separate writ petitions, the termination of the mandate of the Arbitrator and the appointment of a new arbitrator was allowed by the Court.

The main question before the Court was whether the mandate of an Arbitrator can be terminated and a new arbitrator be appointed in his place. The parties had entered into an agreement which had an arbitration clause. When a dispute arose between the parties, a single Arbitrator was appointed to resolve the dispute.

The Court observed that in these cases the Arbitrator did not proceed with the dispute resolution process after 14.03.2009 even though he was free to proceed with the matter. A reading of Section 14(1)(1) of the Arbitration and Conciliation Act shows that the mandate of the Arbitrator shall terminate if he becomes unable to perform his duties de jure or de-facto or he fails to act without undue delay. Here the mandate of the Arbitrator was held to be terminated due to the undue delay caused in the proceedings.

As to the question of appointment of a new Arbitrator, the Court stated that since mandate of the previous Arbitrator stands terminated due to undue delay, a suitable Arbitrator can be appointed for the present case as the arbitration clause as well as the dispute is still existent. [Swadesh kumar Agrawal v. Dinesh Kumar Agrawal, 2017 SCC OnLine MP 1180 decided on 07.09.2017]

Case BriefsHigh Courts

Bombay High Court: In the present case, the Petitioner, an erstwhile teacher at KV Aurangabad Cantt. was subject to termination by the Kendriya Vidyalaya Sanghatan on charges of moral turpitude involving sexual misconduct with certain female students in the 4th Standard, against which he appealed to the Central Administrative Tribunal. The Writ Petition seeking to impugn the CAT’s decision dated 8th May 2013 was placed before a bench comprising of SS Shinde and VK Jadhav, JJ, who affirmed the termination order.

It was argued on the Petitioner’s behalf that principles of natural justice had been violated by not giving him opportunity to be heard at various stages of the enquiry instituted against him, that he had not been given access to the statements and complaints of the students, that the report was not fair etc. Article 81 B of the Education Code of Kendriya Vidyalaya was contended to be ultra vires to Article 14 of the Constitution on grounds of not tendering sufficient opportunity to the delinquent and of  providing arbitrary power to the Authority.

The Court refused to accept any of Petitioner’s contentions. Insofar as Article 81 B of the Education Code provides for an extension of Central Civil Services (Classification, Control and Appeal) Rules, 1965, it also empowers the Commissioner to terminate the services of an employee guilty of sexual misconduct, if, after a summary enquiry, his guilt is prima facie evident. This could be effected by three months’ pay in lieu of notice, for permanent employees, which was done in the instant case. The Court approvingly cited Avinash Nagra v. Navodaya Vidyalaya Samiti (1997) 2 SCC 534, and noted that two safeguards are ensured under the rules devised, which are: the record of reasons for the decision to not proceed to a full enquiry under the rules and the mandate to post those reasons to the Chairman of KVS, i.e. Minister, Human Resources Development. The Court found that the facts showed that adequate opportunity had been given to the Petitioner to represent his side, and principles of natural justice had been followed.  [Gokul v Union of India, 2016 SCC OnLine Bom 3549, decided on 7-06-2016]