Whether an employee should get alternative work and back wages if he acquires a physical disability during his service?

 Further, this arbitrary imposition under Clause 11 is in the teeth of the provisos to Sub Section (4) of Section 20 of the 2016 Act which read as under :

“Provided that, if an employee after acquiring disability is

not suitable for the post he was holding, shall be shifted to

some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the

employee against any post, he may be kept on a

supernumerary post until a suitable post is available or he

attains the age of superannuation, whichever is earlier.”

{Para 17}

18. The above provisos mandate that the Petitioners ought to be shifted to an alternative post with MSRTC with the same pay scale and service benefits and if it is not possible for MSRTC to adjust the Petitioners against any post immediately, they have to be kept on supernumerary posts until suitable posts are available or they attain the age of superannuation, whichever is earlier. This is a mandate under the 2016 Act and a statutory right granted to the Petitioners. This right cannot be violated by Clause 11 of the Impugned Circular. MSRTC has no right and is in fact prohibited from treating the intervening period between the medical examination and a decision thereon as leave without pay. The very idea of restoring an employee to a position with the same pay scale and service benefits which he or she held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the action of termination taken by the employer.

19.  In our opinion, the Petitioners’ reinstatement by MSRTC entitles the Petitioners to claim back wages in their entirety. The denial of back wages to the Petitioners who have suffered due

to their disability would amount to indirectly punishing the Petitioners concerned and rewarding MSRTC by relieving them of their obligation to pay back wages. This would be wholly inequitable and unjust. This would be in contravention of the 2016 Act, as also in contravention of the Constitution of India. As a result, we are of the considered opinion that Clause 11 of the Impugned Circular is ultra vires the 2016 Act, as also violative of Article 14 of the Constitution of India. Therefore, we hereby quash and set-aside Clause 11 of the Impugned Circular.

20. Keeping in line with the mandate of Section 20 of the 2016 Act, we order and direct MSRTC to provide each one of the Petitioners with alternative posts having the same pay scale and service benefits as their earlier position.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 9762 OF 2019

Vikas Khanderao Keng, Vs The State of Maharashtra

CORAM: S.J. KATHAWALLA &

R.I.CHAGLA, JJ.

Dated : 16th JULY, 2020

Citation: 2021(2) MHLJ 131

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Whether nomination made by an employee can be treated as his will and curtail the right of legal heirs to claim a share in his service benefits?

 The purpose of taking a nomination by an employer is to relieve itself of the obligation to pay the benefits, irrespective of the right of a person who is entitled in law to the Fund. Nomination, in law, cannot be construed as a “Will” of the employee and cannot be treated as a testamentary disposition of the deceased employee with an intent to bestow the benefits on the heirs. Every employee has a right in law to decide how his movable assets should be treated and disbursed in the event of his death

and nomination cannot circumscribe the legal rights of disposition of the assets. The purpose of nomination is only to benefit a custodian so as to enable him to know how and to whom he has to hand over the assets, protecting him from litigations and multiplicity of cases from different people, claiming to be successors to the interest of the employee. Thus,

the liability of the employer / custodian is discharged by disbursing the funds to the ‘nominee’ and thereafter if there is an inter-se disputes between the lawful heirs, they could resort to appropriate remedies for identification of their shares. The concept of appointing a nominee therefore is only to ensure that the amounts are disbursed at the earliest to the nominee and this becomes significant as there may be occasions where it may take time for the legal heirs to resolve their disputes and in the meantime the trustee / Custodian Company or any other Institution may go into liquidation or any other contingency may arise making it difficult to realize the retiral and other dues.

 Whenever provident fund amount is

disbursed the custodian of the fund is anxious to have a good

discharge against all claims from whomsoever claiming

through the member. The Rules nowhere provide that the

nomination is to be construed as a will by the member. If a

nomination is to be taken as a final disposition made by the

member as to how it should be taken by his heir on his death, it

would lead to anomalies, because till the member dies, the

nominee acquires no right to claim the amount. The legal right

of a member to decide from time to time as to how his assets

should be taken consequent to his death, cannot be frozen by a

nomination given, as part of his service conditions. His legal

rights about disposition of his assets cannot be circumscribed

by such nomination, 11 he is to execute a “Will” later on,

contrary to the nomination that has been made earlier, the

terms and conditions of the ‘will’ alone can prevail, and so far

as the trustees of the fund are concerned, their obligation will

be fully discharged by paying it to the nominee, who will in turn

be liable to hand over the funds to the persons entitled to as per

the ‘Will’. In case of intestate succession, the nominee is bound

to hand over the amounts to the heirs of the deceased. The main

purpose of nomination is intended to benefit

 the custodianstrustees

of the fund to know as to how or to whom they should

hand over the amounts and need not make themselves

answerable to multiplicity of claims from different persons

claiming to succeed to the interests of the deceased member. If

there is no nomination, the custodian of the fund cannot decide

as to who are the lawful heirs to succeed and they will have to

wait for a Court order to be produced, and unless finality is

reached, therein, the disbursement of the fund will be delayed

Funds, like the provident fund, in the case of State or other

public institutions, may be sufficiently safe-guarded even if

there is to be a delay in disbursement. But in cases of other

institutions, if the amounts are not immediately disbursed on

the basis of nomination, and before proceedings in Court are

over, if for any reasons, the Companies or institutions are

liquidated, the contributions made by a member of such bodies,

will not enure to the benefit of the legal heirs till finality is

reached in Court proceedings unless the amount is deposited in

Court at the earliest stage. The concept of nomination has been

thought of to achieve the disbursement of the amounts at the

earliest point of time to the nominee, who will be answerable to

claims made by those who are entitled to the amount lawfully.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 6701/2018 and C.M. Nos.25451/2018, 41307/2019 and

11129/2020

SUMAN KUMARI @ SUMAN SINGH  Vs  NAND KISHOR & ORS 

CORAM: HON'BLE MS. JUSTICE JYOTI SINGH

Pronounced on: 06.11.2020

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Is the employer liable to pay interest to the employee if he withholds his leave encashment without specific order?

  We, accordingly, allow the petition partially by directing

the respondent to pay the petitioner his leave encashment dues

along with interest at the rate of 8% per annum from the date

the same became due, till payment.”{Para 11}

15. Another Division Bench of this Court in Prem Nath (supra)

dealing with a similar issue in the context of Rule 39 (3) of the CCS (Leave) Rules, 1972 held as under:-

“7. It is undisputed that the respondent retired from service on

31.08.2010 on attaining the age of superannuation and that at

the time of his retirement, or immediately thereafter, leave

encashment was not released to him. There is also no dispute

on the proposition that leave encashment can be withheld under

Rule 39 (3) of CCS (Leave) Rules, 1972, if at the time of

retirement, an employee is under suspension or disciplinary or

criminal proceedings are pending against him. However, a

reading of the said provision clearly shows that in order to

withhold the leave encashment in whole or in part, the authority

competent to grant leave has to pass an order specifically

withholding the encashment, if in its view there is a possibility

of some money becoming recoverable from the employee on

conclusion of the proceedings against him. 

8. Learned counsel for the respondent vehemently submitted

that no such order was passed by the competent authority and

the learned counsel for the petitioners was not able to rebut the

said fact. Consequently, the petitioners herein could not have

withheld the leave encashment and the money ought to have

been released to the respondent soon after his retirement. We

also do not agree with the submissions of the learned counsel

for the petitioners that only because there is no Rule for grant

of interest of leave encashment, the respondent would not be

entitled to the same. Learned counsel has not been able to point

out any rule to the contrary, which creates a bar for grant of

interest in case due amount is released after a considerable

delay. It has been clearly held by the Apex Court in several

judgments including S.K.Dua vs. State of Haryana & Anr.,

(2008) 3 SCC 44 that if there are Statutory Rules or

Administrative Instructions occupying the field, an employee

could claim payment of interest relying on such rule, but even

in the absence of any Statutory Rules or Administrative

Instructions or Guidelines, an employee can claim interest

under Part-III of the Constitution relying on Articles 14, 19 and

21 of the Constitution of India. In this regard, we also rely on a

decision passed by the Division Bench of this Court in Writ

Petition (C) No.1186/2012, titled as ‘Government of NCT of

Delhi vs. S.K.Srivastava’. This judgment also supports our view

that if no order is passed under Rule 39(3) of Leave Rules, the

leave encashment cannot be withheld. The fact of the matter is

that the petitioners are retaining the money of the respondent

from the year 2010 to 2015 and the respondent is, thus, clearly

entitled to interest on the delayed payment. Interest is awarded

to compensate the recipient for the falling value of money due

to inflation. In so far as, the plea of the petitioners that serious

cases were pending against the respondent and, therefore, the

leave encashment was not released is concerned, the same has

no merit either. Although neither the petitioners nor the

respondent have been able to throw any light on the status of

the criminal and disciplinary proceedings as of today, however,

if this was the reason for withholding the leave encashment

then the same status continues perhaps even today. The reason

given for releasing the leave encashment in 2015 is an order

passed by the Public Grievances Commission. We fail to

understand that if the petitioners were withholding the leave

encashment due to pending proceedings then they had the

remedy of not implementing the order of the Public Grievances

Commission. However, having complied with that order and

released the leave encashment, the petitioners cannot be heard

to say that the leave encashment was withheld due to pending

proceedings. Learned tribunal has, thus, rightly come to

conclusion that the respondent deserves interest at the GPF

rate for the delayed payment of leave encashment.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 3114/2020 & CM 10817/2020

SH. S.B. SINGH Vs NATIONAL TEXTILE CORPORATION 

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Whether the court can declare that a private employee's service continues and is entitled to get all consequential benefits?

 9. Through the present petition the petitioner seeks enforcement of a contract of service. The law on the issue is no more res integra. Subject to well defined categories of exceptions, the law and more particularly provisions of Specific Relief Act, do not contemplate enforcing a service contract, as that would amount to specific performance of a contract. In this context I may usefully rely on a passage from Halsbury’s Laws of England, Fourth Edition, Volume 44, which is as under:-

“407. Contracts for personal work or services.— A judgment

for specific performance of a contract for personal work or

services is not pronounced, either at the suit of the employer

or the employee. The court does not seek to compel persons

against their will to maintain continuous personal and

confidential relations. However, this rule is not absolute and

without exception. It has been held that an employer may be

restrained from dismissing an employee in breach of contract

if there is no loss of confidence between employer and

employee or if (at least in a contract of employment to carry

out a public duty) the employee has been dismissed in a

manner which does not comply with statutory or contractual

regulations governing dismissal. No court may, whether by

way of an order for specific performance of a contract of

employment or an injunction restraining a breach or

threatened breach of such a contract, compel an employee to

do any work or attend at any place for the doing of any work.

This principle applies not merely to contracts of employment,

but to all contracts which involve the rendering of continuous

services by one person to another, such as a contract to work

a railway line ….”

10. Supreme Court in several judgments has observed that a Court would normally not give a declaration that a contract subsists and the employee, after removal from service, can be deemed to be in service against the consent of the employer, subject to three broad exceptions (i) where a public servant is removed in contravention of Article 311 of the Constitution of India; (ii) where the worker is reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body

violates mandatory provisions of a Statute.

11. The only remedy thus available to such an employee, who is

discontinued from service, if aggrieved, is to sue for damages and this is evident from reading the provisions of Section 14 read with Section 41 of the Specific Relief Act.

8. In view of the aforesaid judgments, the following

conclusions in law emerge:-

(i) A contract of private employment is not similar to the

public employment and in such private employment there is

no scope of applicability of the principles of administrative

law/public law.

(ii) A contract of employment which provides termination of

services by one month's notice, then, at best the employee

will only be entitled to one month's pay in terms of the

employment contract. An employee is not entitled to any

relief of continuation in services or pay with consequential

benefits for alleged remaining period of services till the date

of his superannuation.

(iii) As per the provision of Section 14(1)(c) of the Specific

Relief Act, 1963, a contract which is determinable in nature

cannot be specifically enforced. Since the service contract in

the present case is determinable by one month's notice there

does not arise the question of giving of any reliefs which

tantamount to enforcement of a determinable contract. As

per Section 14(1)(b), a contract of personal service cannot

be enforced when the employer is not the Government or

“State” as per Article 12 of the Constitution of India.

Plaintiff has in fact received one month's pay and therefore

his claim will stand satisfied in law and he is not entitled to

any reliefs as prayed for in prayer clauses in the suit.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  W.P.(C) 7196/2020

DEEPAK WANKHEDE  Vs INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY 

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

Date of Decision:09.11.2020

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Whether the employer will be liable for defamation of employee if he conducts departmental enquiry against him?

 In the present case, the defendant has taken the defence of privilege. The question is whether the charge-sheet issued against the plaintiff, the enquiry report and the letter of dismissal of the plaintiff can be said to be protected by absolute privilege or qualified privilege?

37. The enquiry proceeding was initiated by the defendant by issuing the charge-sheet on the basis of information received that the matriculation certificate and mark-sheet submitted by the plaintiff at the time of his appointment were not genuine. The information was received from a reliable source and in my opinion could not be brushed aside as frivolous. If it was finally established that the information was true, that would have amounted to a criminal offence on the part of the plaintiff. Having got such information, it was incumbent upon the management of the defendant to hold an enquiry into the matter. Such enquiry was held as part of the management's duty and in larger public interest. As such, in my considered opinion, the enquiry proceedings and all publications made in connection therewith were privileged. As Lord Finlay L.C. observed in Adam vs. Ward, (1917) Appeal Cases 309, if a communication is made in pursuance of a duty, the same would be privileged. His Lordship was of the view that this privilege is qualified and may be rebutted by proof of express malice. In the present case, no case of malice has been established by the plaintiff. Hence, at least, the defence of qualified privilege would be available to the defendant.

38. The law is fairly clear that any step which is essentially a step in a judicial or quasi-judicial proceeding would be immune from liability for defamation as it gives rise to an occasion for privilege.  In O'Conor vs. Waldron, MANU/PR/0085/1934 : AIR 1935 PC 3, Lord Atkin observed that proceedings before an executive or administrative authority or a step to initiate such proceedings can only give rise to an occasion for qualified privilege. Gatley on Libel and Slander (5th Ed., page 181) states that no action will lie for defamatory statements contained in any document which is incidental to the proper initiation of judicial or quasi-judicial proceedings, information, complaint, writ or petition by which the quasi-judicial Tribunal is set in motion.

39. I have no doubt in my mind that the protection of privilege should extend to enquiry proceedings conducted by an employer against an employee. It would definitely not be desirable if an employer in spite of receiving information that an employee is allegedly committing a crime or other wrongful act detrimental to the public interest, refrains from holding an enquiry into the matter for the fear of being exposed to a defamation suit. Such a position would be extremely harmful to the interest of the public at large.

40. The question is whether such privilege should be absolute or qualified. I am of the view that the privilege should be qualified. This means that if the plaintiff is able to establish malice on the part of the defendant in conducting an enquiry proceeding against him by issuing charge-sheet, the defence of privilege will not be available to the defendant. However, in the present case, the plaintiff has been unable to establish malice on the part of the defendant in conducting the enquiry proceeding against him by issuing charge-sheet which culminated in his dismissal order. I am of the considered view that the materials complained of by the plaintiff and forming the basis of the present defamation suit are protected by qualified privilege. The fact that at a subsequent point of time due to intervention of the Hon'ble President of India, the order of dismissal was withdrawn and the plaintiff was reinstated in service, does not change the situation.

 IN THE HIGH COURT OF CALCUTTA

CS 11 of 2006

Decided On: 17.02.2017

 Manik Lal Bhowmik  Vs.  Bharat Sanchar Nigam Limited

Hon'ble Judges/Coram:

Arijit Banerjee, J.

Citation: MANU/WB/0098/2017

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Whether an employer can terminate the services of the employee if he acquires a disability during his service?

 The proviso to section 47 of The Disabilities Act 1995 referred earlier says that if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. The certificate of disability issued by the board in the Solapur hospital as referred earlier shows that petitioner suffered 10% physical disability. Considering said disability and the fact that he was unable to work as a driver and as suggested by the Civil Surgeon, Osmanabad and the board at Solapur he was required to be given other posts or other work in the light of proviso to section 47 of The Disabilities Act, 1995, but instead respondent No. 3 terminated services of the petitioner by the impugned order without considering his request to provide him alternate work made in his application (Exh. 'B') dated 08-03-2010 and without hearing him or without any enquiry. Thus, termination of the petitioner was without any fault on his part. Therefore, we hold that the impugned order is not sustainable being in violation of section 47 of The Disabilities Act, 1995. Thus, as the termination of the petitioner is illegal and is liable to be set aside, he is entitled to financial/monetary benefits of his termination period i.e. from the date of his termination till the date of his retirement on superannuation as well as retiral benefits including pension.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6939 of 2017

Decided On: 01.10.2019

Shaikh Salim Shaikh Amir Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and S.M. Gavhane, JJ.

Citation: MANU/MH/3149/2019

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Supreme Court: Disciplinary proceedings are not quasi criminal in nature

 At the outset, it may be noted that the High Court applied the wrong

test in exercising its power of judicial review with reference to disciplinary

proceedings. Disciplinary proceedings are not quasi criminal in nature. A

disciplinary inquiry is conducted by the employer to inquire into a charge or

misconduct pertaining to a breach of the rules and regulations governing

the service of the employer. The standard of proof is not that governed by a

criminal trial.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 9520 OF 2019

Uttarakhand Transport Corporation Vs. Heera Singh Parihar 

Dr Dhananjaya Y Chandrachud, J

Dated:December 18, 2019

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Whether causing simple hurt can be treated as crime involving moral turpitude for taking disciplinary action against employee??

There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the Respondent does not involve moral turpitude. As the Respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7011 of 2009

Decided On: 26.04.2019

 The State Bank of India  Vs.  P. Soupramaniane

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Whether employer can remove employee from service even if he was released on probation of offenders Act?

 Yet another reason given by the High Court for interference with the order of discharge is that the criminal court released the Respondent on probation only to permit him to continue in service. The release under probation does not entitle an employee to claim a right to continue in service. In fact the employer is under an obligation to discontinue the services of an employee convicted of an offence involving moral turpitude.1 The observations made by a criminal court are not binding2 on the employer who has the liberty of dealing with his employees suitably.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7011 of 2009

Decided On: 26.04.2019

 The State Bank of India  Vs.  P. Soupramaniane

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: AIR 2019 SC 2187

L. Nageswara Rao, J.

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Whether employer should advise employees about service rules?

The learned Tribunal as well as the High Court granted the relief
to respondent No. 4 on the ground that the department ought to
have informed and/or advised the employee with respect to the
seniority to be fixed on the basis of rotaquota
rule and as the

department failed to do so, respondent No. 4 cannot be denied
his legitimate right to be placed at an appropriate place in the
seniority list, as otherwise also he was selected for a promotion in
the LDCE quota also. On the aforesaid terms, the learned
Tribunal as well as the High Court are not justified in directing to
put respondent No. 4 in the seniority list above the appellant
who, in fact, was appointed in the LDCE quota and the
respondent No. 4 never accepted his promotion in the LDCE
quota. It was for the employee to know the rule. The department
was not expected to advise and/or tell the employee about how
the seniority will be fixed and/or about the rotaquota
rule.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7779 OF 2012

P. Subramaniyam Vs Union of India


M. R. Shah, J.
Dated:March 15, 2019.

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Whether departmental enquiry can started against government servant on ground that he has extra marital affairs?

Thus, this Court feels that a human dignity attaches to
itself also a right of concept of autonomy and also a right to
take ones own decisions for himself or herself relating to
his/her body and choices of his/per partner for whom he or
she wishes to live or have sexual intercourse. These choices
and selections cannot be a subject matter of departmental
proceedings and no employer can be allowed to do moral
policing on its employees which go beyond the domain of his
public life.
44. In view of the above discussions and observations, this
Court is of the opinion that an act of relationship entered by
an individual with another female or male as the case may be
while is/her spouse is alive would be an act of amounting to
adultery and would be considered as an immoral act so far as
the Indian society is concerned. It is not to be appreciated.
The same would, however, not be a ground for initiating
(33 of 33) [CW-2067/1999]
departmental proceedings by the employer and it be left best
for the person who may be affected individually to take
remedy and proceed against him/her in civil law or for
initiating divorce proceedings as the case may be.
45. Thus, this Court concludes that the respondents had no
authority to issue letter dated 30/01/1999 directing the
petitioners to undergo DNA Test alongwith child of Dharma
Rani and the action of suspending the petitioners and issuing
subsequently memorandum dated 16/12/2000 under Rule 16
of the Rajasthan Civil Services (Classification, Control &
Appeal) Rules, 1958 is found to be illegal and unjustified and
the same is quashed and set aside and further, it is held that
the State Government shall not initiate departmental
proceedings on the basis of a complaint of any person against
a Government servant alleging therein of the said
Government servant having extra-marital relationship with
another man or woman whether married or unmarried.

Reportable
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S. B. Civil Writ Petition No. 2067/1999

Mahesh Chand Sharma  Vs  State of Rajasthan

MR. JUSTICE SANJEEV PRAKASH SHARMA

Pronounced on 07/03/2019

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Whether higher officer can be held guilty for abetment of suicide if he taking extra work from employee after office hours?

 In the context of aforesaid legal positions, this court is of

the view that alleged act of mis-behaviour and taking extra work
after the office hours from the deceased cannot be equated into
abetting the deceased to commit suicide. If any higher officer
compels his sub-ordinate to do extra work which is unbearable,
then he has other options and it cannot be said that he had no
other option except to commit suicide. Under these
circumstances, the appellant cannot be held responsible for
abetting the deceased to commit suicide.
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon'ble Shri Justice S.K. Awasthi
Cr.A. No.4509/2018

Satendra Jha vs. State of Madhya Pradesh & Ors.

(Passed on 06/03/2019)

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Whether small cause court has jurisdiction to try eviction suit filed by employer by his employee?

To appreciate the controversy, it will be useful to state the pleadings of the parties in brief. According to the plaintiffs, the defendant, who is the revision applicant before this Court, was in service of the Trust. He was allotted the suit premises as a gratuitous/service licensee without payment of rent or charges. As the services of the defendant were no more required, the plaintiffs terminated the services of the defendant on 18.11.2004 with the immediate effect and requested him to vacate the premises and hand over the possession to the plaintiffs.  In view of these circumstances, the plaintiff filed the suit before the Small Cause Court for eviction and possession and sought the direction from the Small Cause Court to the defendant to deposit royalty amount of Rs. 5,000/ - per month. The defendant denied that he was provided the premises as service accommodation. According to him, he was inducted as a tenant independently of his service with the plaintiffs. According to him, in view of the plea taken by the plaintiffs, there was a relationship of the licensor and licensee and, therefore, the proceedings could be filed only before the competent authority under Chapter VIII of the Maharashtra Rent Control Act, 1999 and not before the Small Cause Court under the Presidency Small Cause Courts Act, 1882. After hearing the parties, the trial Court rejected the contention of the defendant and held that he had jurisdiction to entertain the suit and he also directed the defendant to deposit the arrears of compensation as claimed and also to continue to pay amount of Rs. 5,000/- per month till the final disposal of the suit. That order is challenged by the defendant in the present Revision Application.

As noted above, according to the pleadings of the plaintiff, the defendant was not paying either license fee or charge or any rent and therefore he was neither a licensee as defined in Section 7(5) nor he was a tenant under Section 71(15) of the Rent Act and therefore his case would not be covered either under Section 22 or 24 of the Rent Act. Therefore, the landlord could not have made an application before the competent authority and the provisions as contained in Chapter VIII would not be applicable. Therefore, the competent authority does not have jurisdiction to entertain application of the plaintiff and as a result of this, the jurisdiction of Small Cause court under Section 41 of the Presidency Small Cause Court Act is not ousted. In view of these facts and legal position, it must be held that the Small Cause Court is competent to entertain the suit of the plaintiff under Section 41 of the Presidency Small Cause Court Act. Therefore, I do not find any illegality or irregularity in the findings of the trial Court in respect of its finding about jurisdiction.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 181 of 2010

Decided On: 09.09.2010

Viraf G. Ichhaporia  Vs. Mancherji Jamshedji Cama and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2010(6) MHLJ 386

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Whether tenant will be evicted from rented premises if his employer has allotted him alternative accommodation?

We may now advert to the issue framed under Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Section 13(1)(1) reads as under :

"that the tenant after coming into operation of this Act has built, acquired vacant possession of, or been allotted a suitable residence."

A look at the section would indicate that it does not require any other rule of construction except the literal construction. Such a construction would contemplate that building or owning a premises is distinct from acquiring vacant possession or allotment of suitable residence. If the arguments of the petitioner is to be accepted, it would contemplate that if the petitioner is allotted the premises by his employer in the same locality that would not amount to acquisition of premises. The argument is based on the contention that there must be an element of volunteerness. In other words, it is sought to be contended on behalf of the petitioner that once petitioner is a tenant and during the course of his employment is allotted residence by his employer, that allotment would not amount to acquisition of suitable residence. It would be difficult to accept this contention as the consequences that follows from that argument, would be that once a tenant, always a tenant. In other words it may amount to depriving the landlord of his right to property. Such construction in my opinion is not possible.

The purpose of the Rent Act was to prevent eviction of the tenant except for those grounds contained inSection 13 and Section 12(3) of the Bombay Rent Act. If, therefore, during the course of the tenancy the tenant acquires whether by way of tenancy or by way of allotment by his employer accommodation that would fall within the meaning of Section 13(1)(1). The element of volunteerness in those matters would be immaterial as otherwise. It would be carving out a class of tenants in organisation who though allotted suitable accommodation by the employer can continue to reside in the premises for all times to come. This would have never been the object for which Section 13(1)(1) was enacted which was to provide protection to the tenant.

Bombay High Court

Rajendraprasad Kedarprasad ... vs Shankar Vithu Kuveskar on 5 April, 2002

Equivalent citations: 2002 (3) BomCR 425, (2002) 4 BOMLR 126, 2002 (3) MhLj 498

Bench: F Rebello

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Whether employer has right to recover excess payments from pensionary benefits of employee?

In the present case, the declaration of the petitioner that Learned Counsel for the State has relied on is as follows:-

“I do hereby agree that the payments of the monthly bills and arrear pay bills drawn in the revised scale of pay are ‘Provisional’ and are subject to subsequent adjustment and that the over-drawals, if any, in this regard be recovered forthwith from my salary bill” (emphasis is mine).

14. The form of declaration clearly means that even at the highest, recovery of excess payment could be made by the State from the salary bill of the petitioner during the tenure of his service. In my opinion, such a declaration would not entitle the State to recover any over-drawals from the pensionary benefits of the petitioner. Pensionary benefits are paid to a superannuated person by way of social welfare measure to enable him to live a life of dignity which is now recognized as a fundamental right of a citizen of India. Retiral benefits are not to be lightly interfered with. Any right of the employer to recover from the pensionary benefits of an employee any excess payment received by the employee due to no fault, fraud or misrepresentation on his part is to be strictly construed. Of course, it will be a different thing altogether if the employee has fraudulently induced the employer to make the excess payment. In such a case the employer's right to recover the excess payment from the pensionary benefits of the employee cannot be doubted since fraud unravels everything. But it is not the case of the State that the petitioner in the present case has received excess payment by practising fraud or making misrepresentation nor that the petitioner was conscious that he was receiving more than he was entitled to. Moreover, it is common knowledge that such declarations are signed by an employee under compelling circumstances with no real choice in the matter. As a Learned Judge observed in one case, the choice is like choosing between the devil and the deep sea. 

In the High Court of Calcutta

(Before Arijit Banerjee, J.)

WP 29979 (W) of 2016

Shiba Rani Maity

v.

The State of West Bengal

Decided on January 18, 2017

Citation: 2017 SCC OnLine Cal 109

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Whether Essentiality of a term in Notice Inviting Tender can be decided by Employer?

Yet another problem could be faced by an employer (such
as CCL) if the language used in the terms of the NIT or the GTC
is not adhered to and its plain meaning discarded. A problem
could be faced by an employer if every bidder furnishes a bank
guarantee in a different format or one that it is comfortable with.
In such a situation, CCL would have to scrutinize each bank
guarantee to ascertain whether it meets with its requirements
and the NIT and the GTC. Apart from the text of the bank
guarantee, minor changes could be made by a bidder such as
enforceability in a place other than Ranchi (but in Jharkhand)
etc. This would place an avoidable and undue burden on the
employer particularly if there are a large number of bidders.
. Not only this, any decision taken by the employer in
accepting or rejecting a particular bank guarantee in a format
not prescribed by it could lead to (avoidable) litigation requiring
the employer to justify the rejection or acceptance of each bank
guarantee. This is hardly conducive to a smooth and hassle-free
bidding process.
52. There is a wholesome principle that the Courts have been
following for a very long time and which was articulated in Nazir
Ahmad v. King EmperorAIR 1936 PC 253 namely“Where a power is given to
do a certain thing in a certain way the thing must be done in
that way or not at all. Other methods of performance are
necessarily forbidden.” There is no valid reason to give up this
salutary principle or not to apply it mutatis mutandis to bid
documents. This principle deserves to be applied in contractual
disputes, particularly in commercial contracts or bids leading up
to commercial contracts, where there is stiff competition. It must
follow from the application of the principle laid down in Nazir
Ahmed that if the employer prescribes a particular format of the
bank guarantee to be furnished, then a bidder ought to submit
the bank guarantee in that particular format only and not in any
other format. However, as mentioned above, there is no

inflexibility in this regard and an employer could deviate from
the terms of the bid document but only within the parameters
mentioned above.
53. Nazir Ahmed has been followed in dozens of decisions
rendered by this Court and by other constitutional Courts in the
country. The Central Vigilance Commission has accepted this
principle in a modified form as a guiding principle in its circular
dated 31st December, 2007 wherein it is mentioned that all
organizations ought to evolve a procedure for acceptance of bank
guarantees that is compatible with the guidelines of banks and
the Reserve Bank of India. One such requirement is that the
bank guarantee should be in a proper prescribed format and
should be verified verbatim on receipt with the original.
Adherence to this principle of verbatim verification would not
only avoid undue problems for the employer but would also
virtually eliminate subjectivity on the part of the employer.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8004 OF 2016
Central Coalfields Limited & Anr. .
V
SLL – SML (Joint Venture Consortium) &
Ors. 
Dated:August 17, 2016
Citation: AIR 2016 SC 3814,(2016) 8 SCC622

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Procedure to be followed by employer in case of suppression of fact of criminal antecedent by employee

We have noticed various decisions and tried to explain and reconcile them as
far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(1) Information given to the employer by a candidate as to conviction,
acquittal or arrest, or pendency of a criminal case, whether before or after
entering into service must be true and there should be no suppression or
false mention of required information.
(2) While passing order of termination of services or cancellation of
candidature for giving false information, the employer may take notice of
special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government
orders/instructions/rules, applicable to the employee, at the time of taking
the decision.
(4) In case there is suppression or false information of involvement in a
criminal case where conviction or acquittal had already been recorded
before filling of the application/verification form and such fact later
comes to knowledge of employer, any of the following recourse
appropriate to the case may be adopted : -
(a) In a case trivial in nature in which conviction had been
recorded, such as shouting slogans at young age or for a petty
offence which if disclosed would not have rendered an
incumbent unfit for post in question, the employer may, in its
discretion, ignore such suppression of fact or false information
by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial
in nature, employer may cancel candidature or terminate
services of the employee. 
(c) If acquittal had already been recorded in a case involving moral
turpitude or offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may take
appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a
concluded criminal case, the employer still has the right to consider
antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification
form regarding pendency of a criminal case of trivial nature, employer, in
facts and circumstances of the case, in its discretion may appoint the
candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple
pending cases such false information by itself will assume significance
and an employer may pass appropriate order cancelling candidature or
terminating services as appointment of a person against whom multiple
criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time
of filling the form, still it may have adverse impact and the appointing
authority would take decision after considering the seriousness of the
crime.
(9) In case the employee is confirmed in service, holding Departmental
enquiry would be necessary before passing order of termination/removal
or dismissal on the ground of suppression or submitting false information
in verification form.
(10) For determining suppression or false information attestation/verification
form has to be specific, not vague. Only such information which was
required to be specifically mentioned has to be disclosed. If information
not asked for but is relevant comes to knowledge of the employer the
same can be considered in an objective manner while addressing the
question of fitness. However, in such cases action cannot be taken on
basis of suppression or submitting false information as to a fact which
was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi,
knowledge of the fact must be attributable to him.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITIOIN [C] NO.20525/2011
Avtar Singh 
Vs.
Union of India & Ors. 
[With SLP [C] Nos.4757/2014 and 24320/2014]
Dated:July 21, 2016.
ARUN MISHRA, J.
Citation:2016 SCC online SC 726

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Whether employer can continue departmental enquiry against employee even if employee has applied for voluntary retirement?

In our considered opinion, the Bank was within
its rights to issue a charge-sheet to the appellant on
02.03.2001 because firstly, on 02.03.2001, the
appellant was in the employment of the Bank and,
therefore, he could be subjected to face disciplinary

proceedings as per the Rules. Secondly, since the
memo was served on the appellant prior to
introduction of the Scheme, the disciplinary
proceedings were rightly initiated by serving a
charge-sheet on the appellant after coming into force
of the Scheme on 01.11.2000. Thirdly, in terms of the
Scheme, the appellant's application could be
considered only after conclusion of disciplinary
proceedings and, therefore, the Bank was right in
considering the application and eventually accepting it
on 19.06.2001. Fourthly, the relationship of employee
and employer between the appellant and the Bank
continued till 19.06.2001 and, therefore, the Bank was
within its rights to take any action under the service
rules against the appellant up to 19.06.2001. It is not
in dispute that the Bank took all the disciplinary
actions prior to 19.06.2001 and then accepted the

application for voluntary retirement on 19.06.2001.
Such action, in our view, was just, legal and proper.
46) In the light of foregoing reasons, we cannot
accept the submission of learned counsel for the
appellant when he contended that the appellant stood
deemed retired on 31.12.2000 because no order was
passed or/and communicated to him by the Bank on
or before 31.12.2000 on his application for voluntary
retirement and, therefore, the Bank had no right to
initiate any disciplinary proceeding and pass the
punishment order against the appellant after
31.12.2000. This submission is devoid of any merit
and is accordingly rejected.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5038 OF 2009

Surjeet Singh Bhamra Vs Bank of India & Ors. 

Citation:2016(3) ALLMR 403 SC
Abhay Manohar Sapre, J.

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When relationship of employer employee is not proved?

 The position of law as laid down in the above
decision that in the absence of employeremployee
relationship, the
Industrial Court shall not have jurisdiction under Section 28 of the
M.R.T.U and P.U.L.P Act, is not disputed by learned counsel Shri Rohit
Deo appearing for the respondents. After going through the
averments made in the complaint, I do not find any specific averment
that the complainants are either working in the Modern School or in
the Jingle Bell School. The vague assertion is that they are employees
of the petitioner Society. The complainants have not produced the
letter of appointment in support of such stand. One of the
complainants has entered the witnessbox
and has stated that Jungle
Bell and Modern School are two different entitites and that he is not
aware as to how many out of 31 employees are working at Jingle Bell
School and how many are working with J.K.Education Society. The
complainants have failed to discharge their initial burden to establish
relationship of employeremployee
and therefore, there was no
question of the petitioner to lead evidence in rebuttal. Therefore, the
Industrial Court has committed an error in entertaining such
complaint and issuing direction to the petitioner to grant benefit of the
resolution at Exh. 40 to the complainant. The judgment and order
impugned cannot, therefore, be sustained and the complaint in liable

to be dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1876 of 2009
J.K. Education Society,

Versus
Shri Sunil Uaike.

Coram : R.K. Deshpande, J.
Dated : 05 th October, 2015
Citation; 2016(2) ALLMR50

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