Whether a person can be denied employment due to his medical condition?

A person who suffers from an ailment which medical treatment can cure and is otherwise fit to discharge the duties and responsibilities of the post to which he applies, cannot be denied the right to lead a productive life, to maintain himself and his family with dignity and strive towards excellence as enshrined under Article 51A(g). The Constitution has enjoined on the State under Article 41 within the limits of its economic capacity and development to make provision for right to work and under Article 39(c) to direct its policy, so that citizens, men and women have the right to an adequate means to livelihood. A policy which unreasonably deprives a person of his right to work, (within the State's economic capacity) which is now judicially recognised as a part of right to life, would apart from being violative of Article 21, would also be violative of Articles 14 and 16(1). The consequences of upholding such a policy, if any, would be that persons who at one point of time suffered from an ailment will be denied employment in State institutions. If such a citizen is not entitled to be considered fit for consideration in public employment his chance of employment in the private sector would be nil.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 576 of 2008

Decided On: 08.05.2009

 Ranjit Kumar Rajak  Vs. State Bank of India

Hon'ble Judges/Coram:

F.I. Rebello and R.S. Mohite, JJ.

Citation: MANU/MH/0452/2009 : (2009) 5 Bom CR 227.

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Delhi HC: A person terminated from private employment can file suit for declaration that termination was illegal

A meaningful reading of the Plaint shows that the respondent

has not sought any re-instatement in service but had claimed that the

termination is illegal and hence null and void.

13. Learned counsel for the respondent before the trial court

categorically stated that the respondent did not seek any reinstatement.

14. Even if prayer (a), as framed, could not be granted, respondent

could claim damages etc. for wrongful termination in case respondent

is able to establish that the termination is illegal or contrary to any

settled principles and that is what the respondent has sought in prayers

(b) to (d).

15. In case the contentions of learned counsel for the petitioner

were to be accepted, then respondent/plaintiff would be left

remediless. On the one hand, as an employee, she cannot claim the

relief of reinstatement and on the other hand the employee she is

stated to be barred from claiming any damages. That can never be the

intention of the law.

16. It is also a settled position that under order 7 Rule 11 CPC, a

plaint cannot be dissected and rejected in part. The plaint has to be

rejected as a whole or not at all.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 27.09.2019

C.R.P. 215/2019

INTERTEK INDIA PVT LTD Vs PRIYANKA MOHAN 

CORAM:-

 MR JUSTICE SANJEEV SACHDEVA

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Whether a candidate can be declared as medically unfit for present employment if there is apprehension as to future medical complications?

 Essentially, the issue that arises is whether a person who suffers from ill-health can be denied employment on the ground that his continued utility is in doubt. It is indeed surprising, if not shocking, that a Central Government Organization such as the NFC should resort to such a practice, whereby a person who is presently capable of doing the job is being denied employment on the ground that he may develop complications in future. That is clearly the thrust of the Medical Boards opinion which was accepted by the NFC and led to the rejection of the respondents candidature once again under the letter dated 05.09.2017 As to whether the respondent suffers from hypertensive retinopathy at all is one aspect of the matter but as rightly pointed out by the Tribunal, the authorities seem to have gone on a witch-hunt to come up with new diseases/disorders so as to show the respondent the door. This is clear from the fact that the second Medical Board went to great lengths to ascertain the extent of the sleep disorder (apnea) afflicting the respondent. It is however not brought out as to how such a sleep disorder would adversely impact the performance of duties by the respondent, if appointed.

In the High Court of Andhra Pradesh

(Before Sanjay Kumar and M. Ganga Rao, JJ.)

Union of India  Vs  Nenavath Suresh 

Writ Petition No. 19366 of 2018

Decided on August 31, 2018

Citation: 2018 SCC OnLine Hyd 294

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Whether tenant is said to have acquired suitable accommodation if he is occupying quarters allotted by employer?

It appears from the record that the lower appellate Court has also not considered another judgment of the Apex Court in the case of B.R. Mehta v. Smt. Atma Devi and Ors. reported in MANU/SC/0740/1987 : [1987]3SCR1184 , which deals with allotment of government quarters to the wife of the tenant. In para 4 of the judgment, the Apex Court observed that the correct position must be that if the tenant has a legal right, then only can such acquisition or allotment would attract the provision of Section 14(1)(h) of the Delhi Rent Control Act. It is further opined that, if in the real sense the tenant acquired or was allotted another residence, then his need for the old tenanted residence would go and the tenant would lose his right to retain his tenanted premises. If we apply this ratio to the present set of facts, then it is clear that acquisition or allotment as contemplated by Section 13(1)(l) of the Bombay Rent Act necessarily implied "as of right" and mere temporary occupation of quarters for the purpose of employment could not amount to acquisition of suitable accommodation so as to render the tenant liable for eviction from the rental premises. It also appears from the perusal of the judgment of the lower appellate Court that it has merely opined that it did not find any error or illegality in the findings of the Trial Court that defendant No. 1 had acquired suitable residential accommodation. Thereafter the lower appellate Court proceeds on the basis of evidence of suitability of accommodation itself and proceeded to hold that the findings recorded by the Trial Court appear to be legal. While doing so, the appellate Court, in my considered view, did not take into account all the relevant aspects noted above.

13. At this juncture, the judgment of the Gujrat High Court in the case of Francis Dias v. H. Sumatilal reported in MANU/GJ/0108/1985 : AIR1985Guj171 , Justice Ahmadi (as he was then) has interpreted Section 13(1)(l) of the Bombay Rent Act and observed as follows:

Read in the contest of the preceding words, acquisition of possession can never mean permission for temporary use of a suitable residence. The word "acquire" is a well understood legal term and when used with the term "possession" it generally means something more than mere temporary possession, it usually implies a vesting of interest or some substantial right to possess the residence. Even the words "has been allotted" a suitable residence mean more than mere temporary residence, they mean allotment as of right.... What is sought to be conveyed is that he must have acquired right to possess another suitable residence, a right which he can enforce in a Court of law if he is sought to be dispossessed.

Similar view has been taken by this Court in the case of Pramila Madhav Damle & ors. v. Waman R. Koparde reported in MANU/MH/0148/1999 : 1999(2)BomCR371 . Relying on the Supreme Court judgment in the case of B.R. Mehta v. Atma Devi (Supra), this Court has opined that in order to bring the case under the mischief of Section 13(1)(l) of the Bombay Rent Act, the tenant should acquire or must be able to reside in the alternate accommodation as a matter of right, then only Section 13(1)(l) would be attracted.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4949 of 1993

Decided On: 04.05.2006

 Surendra M. Wagh Vs. Manohar Krishna Kale 

Hon'ble Judges/Coram: P.V. Kakade, J.

Citation: 2006(4) ALLMR 19,2006(5) MHLJ 70

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Whether person can retain possession of property if he is residing elsewhere for purpose of employment?

 Once again, the Defendants relied upon the pleadings in the suit. It is argued that the Plaintiffs were not in possession of the suit property as in the plaint the Plaintiffs have themselves stated that they were residing at different places in Goa and not in the suit property. However that is a distorted reading of para 10 of the plaint. Therein, it is only stated as a fact that for the purpose of employment, these Plaintiffs were residing at Margao, Goa or Ponda, Goa. At the same time, it is nowhere stated or admitted that they were not in possession of the suit property. On the contrary, it is specifically stated that since they were staying away from the suit property, they used to visit the suit property occasionally. This makes the stand of the Plaintiff categorical to the effect that they claimed their possession over the suit property.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 12068-12070 of 2016 (Arising out of SLP (C) Nos. 1949-1951 of 2014)

Decided On: 14.12.2016

 Vishram and Ors. Vs Sudesh Govekar (D) by L.Rs. and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and N.V. Ramana, JJ.

Citation: (2017) 11 SCC 345

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Whether juvenile can be denied employment on ground that he was convicted by juvenile justice board?

The   Juvenile   Justice   (Care   &

Protection of Children) Act, 2015, (‘the Act
of   2015’   for   short)   came   into   force   on   1st
January,   2016.   Since   the   offences   alleged
against   the   petitioner   were   committed   on
22.07.2010 and he has been dealt with by the
Juvenile Justice Board on 15th  January, 2011,
he   would   be   governed   by   the   Act   of   2002,
which   was   in   force   at   the   relevant   time.
Even   under   the   Act   of   2015,   there   is   an
analogous provision in Section 24 pertaining
removal   of   disqualification   attached   to
conviction   of   an   offence   of   “a   juvenile   in
conflict with law”, who is referred to as “a
child in conflict with law” as per the Act of
2015.      
10. As   mentioned   in   the   statement   of
objects and reasons of the Act of 2000, one
of   the   objects   is   to   rehabilitate   the
juvenile/child   in   conflict   with   law.   The
provisions   of   sub­section   (1)   of   Section   19
would   provide   the   juvenile   in   conflict   with

law found guilty of an offence an opportunity
to   amend   and   regulate   his   delinquency.
Removal   of   disqualification   attached   to   a
conviction of a juvenile in conflict with law
would   have   the   effect   of   opening   the   doors
for   him   of   a   descent   and   disciplined
civilized life. The order holding him guilty
of an offence  would not disqualify  him from
getting any job to which otherwise  he would
be legitimately entitled.   
11. Sub­section (1) of Section 19 of the
Act of 2000 starts with a non obstante clause
i.e.   “notwithstanding   anything   in   any   other
law”.   In   the   directive   no.33   (d)   it   is
mentioned   that   the   candidate   must   submit   an
affidavit   giving   his   personal   details
including the fact that he has not been ever
convicted for any offence under law. The said
clause   cannot   be   used   for   disqualifying   the
petitioner  for his enrolment in the Army on
the   ground   that   he   was   held   guilty   by   the

Juvenile Justice Board. Such disqualification
has   been   specifically   removed   by   the
provisions   of   sub­section   (1)   of   Section   19
of   the   Act   of   2000   and   the  non   obstante
clause used therein would override  directive
no.33 (d) issued by respondent nos. 3 and 4.
Respondent no.4, therefore, was not justified
in   cancelling   the   candidature   of   the
petitioner  for his enrolment in the Army on
the   ground   that   he   was   held   guilty   by   the
Juvenile   Justice   Board,   Nanded.   The   letter
dated   31st  March,   2016,  issued   by   respondent
no.4   cancelling   candidature   of   the
petitioner,   in   the   above   circumstances,   is
liable   to   be   quashed   and   set   aside.
Respondent  no.4 will have to be directed to
reconsider the candidature of the petitioner
for enrolment into the Army on his own merits
without being influenced by his conviction by
the Juvenile Justice Board.   
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5093 OF 2016 

Kailas Sambhaji Lohakre,  V  The State of Maharashtra,  

      CORAM:  S.S.SHINDE & 
              SANGITRAO S.PATIL,JJ.
 Citation: 2016(6) MHLJ 957

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Leading Judgment of SC on removal of employee from service on ground of suppression of material information by them

The fraud and misrepresentation vitiates a transaction and in case
employment has been obtained on the basis of forged documents, as observed in
M. Bhaskaran’s case (supra), it has also been observed in the reference order that if
an appointment was procured fraudulently, the incumbent may be terminated
without holding any inquiry, however we add a rider that in case employee is
confirmed, holding a civil post and has protection of Article 311(2), due inquiry
has to be held before terminating the services. The case of obtaining appointment
on the basis of forged documents has the effect on very eligibility of incumbent for
the job in question, however, verification of antecedents is different aspect as to his
fitness otherwise for the post in question. The fraudulently obtained appointment
orders are voidable at the option of employer, however, question has to be
determined in the light of the discussion made in this order on impact of
suppression or submission of false information.
26. No doubt about it that verification of character and antecedents is one of the
important criteria to assess suitability and it is open to employer to adjudge
antecedents of the incumbent, but ultimate action should be based upon objective
criteria on due consideration of all relevant aspects.
27. Suppression of ‘material’ information presupposes that what is suppressed
that ‘matters’ not every technical or trivial matter. The employer has to act on due
consideration of rules/instructions if any in exercise of powers in order to cancel
candidature or for terminating the services of employee. Though a person who has
suppressed the material information cannot claim unfettered right for appointment
or continuity in service but he has a right not to be dealt with arbitrarily and
exercise of power has to be in reasonable manner with objectivity having due
regard to facts of cases.
28. What yardstick is to be applied has to depend upon the nature of post, higher
post would involve more rigorous criteria for all services, not only to uniformed
service. For lower posts which are not sensitive, nature of duties, impact of
suppression on suitability has to be considered by concerned authorities
considering post/nature of duties/services and power has to be exercised on due
consideration of various aspects.
29. The ‘McCarthyism’ is antithesis to constitutional goal, chance of
reformation has to be afforded to young offenders in suitable cases, interplay of
reformative theory cannot be ruled out in toto nor can be generally applied but is
one of the factors to be taken into consideration while exercising the power for
cancelling candidature or discharging an employee from service.
30. 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 … Petitioner
Vs.
Union of India & Ors. … Respondents
[With SLP [C] Nos.4757/2014 and 24320/2014]
Dated:July 21, 2016.
ARUN MISHRA, J.

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Whether Denial of employment to married daughter of affected family is violative of constitutional principles?

In the matter of National Legal Services Authority v. Union
of India Manu/SC/0309/2014 : (2014) 5 SCC 438, the Supreme Court recognized that gender identity,
is an integral part of sex within the meaning of Articles 15 and
16 of the Constitution of India and no citizen can be
discriminated on the ground of gender. The Supreme Court
observed as follows:

“We, therefore, conclude that discrimination on
the basis of sexual orientation or gender identity
includes any discrimination, exclusion, restriction
or preference, which has the effect of nullifying
or transposing equality by the law or the equal
protection of laws guaranteed under our
Constitution, and hence we are inclined to give
various directions to safeguard the constitutional
rights of the members of the TG community.”
34. Thus, from the aforesaid cases it is quite vivid that marriage is
a social circumstance and basic civil right of man and woman,
and marriage by itself is not a disqualification. A daughter
remains a daughter after her marriage and does not cease to
be a daughter of her father or mother. Thus, denial of
employment, included in the rehabilitation, to married daughter
of an affected family (land oustee) is gender-biased and
unreasonable and violative of Articles 14 & 15 of the
Constitution of India as well as Article 21, as rehabilitation of a
land oustee is logical corollary of Article 21 of the Constitution
of India.
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No.1762 of 2014
Smt. Sadhna Bai, V State of Chhattisgarh, 
Hon'ble Shri Justice Sanjay K. Agrawal
Citation; AIR 2016(NOC)286 CHHAT

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Whether compensation can be denied for death to truck driver as he had gone for nature's call during period of his employment?

 In the present case, there is nothing to induce to hold that truck
driver had abandoned duty for his personal work or that his duty was
terminated. Indeed, he had perforce to take back the truck after
unloading to other destination. The area of operation would thus be
extensive even if the driver has left the truck for a while. Is it that the
driver of the truck should not answer nature's call, or simply for that
purpose, he should be thrown away from being branded as a
employee or workman. It cannot be said such employee has not
expired during the course of employment. It is matter of record, as
rule, employment of workmen like the driver has the connectivity with
the vehicle. The cleaner could not even otherwise drive the vehicle.
The facts and circumstances of each case needs to be
examined carefully in order to determine whether the accident arose
within and in the course of employment of the workman. This is
keeping in view the theory of notional extension. The time gap in the
instant case of parking truck for unloading and driver leaving, is
eloquent and cannot be trotted to claimants’ disadvantage.
 In the situation, I hold that the driver expired during the course of
employment, as workman. 
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT AURANGABAD

FIRST APPEAL NO. 143 OF 2007
 Ruksana w/o Shaikh Aleem,

versus
 Azmat Khan s/o Daulat Khan Pathan

 CORAM : K.U. CHANDIWAL, J.


 Date of pronouncing
 the Judgment : 20th February, 2014
Citaion;2015(7)ALLMR230

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Whether employer can recover damages for breach of employment bond if no loss is suffered by them?

 In Union of India v. Rampur Distillery and Chemical Company Ltd., (supra) scope of S. 74once again came up for consideration before the Apex Court. Their Lordships of the Supreme Court after adverting to the decision in Maula Bux v. Union of India , held that the plaintiffs in those proceedings, having made no attempt to establish that they suffered any loss or damage on account of the breach committed by the defendants, ought to fail particularly when the breach of contract in that case was not shown to have resulted in any loss to the appellate/plaintiffs.

Madras High Court

Toshniwal Brothers (P) Ltd. vs Eswarprasad, E. And Others on 18 January, 1996

Bench: D J Raju

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Golden rules for interpretation of employment bond

The true rule of construction is that when a covenant or agreement is impeached on the ground that it is in restraint of trade, the duty of the Court is, first to interpret the covenant or agreement itself, and to ascertain according to the ordinary rules of construction what is the fair meaning of the parties. If there is an ambiguity it must receive a narrower construction than the wider. In Mills v. Dunham, L.R. [1891] 1 Ch. 576, Kay, LJ. observed:

"If there is any ambiguity in a stipulation between employer and employee imposing a restriction on the latter, it ought to receive the narrower construction rather than the wider-the employed ought to have the benefit of the doubt. It would not be following out that principle correctly to give the stipulation a wide construction so as to make it illegal and thus set the employed free from all restraint. It is also a settled canon of construction that where a clause is ambiguous a construction which will make it valid is to be preferred to one which will make it void."

The restraint may not be greater than necessary to protect the employer, nor unduly harsh and oppressive to the employee. 

Supreme Court of India

Superintendence Company Of India ... vs Krishan Murgai on 9 May, 1980

Equivalent citations: 1980 AIR 1717, 1980 SCR (3)1278,
BENCH:

TULZAPURKAR, V.D.UNTWALIA, N.L.SEN, A.P. (J)

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Whether power to repatriate embrace within itself power to remove govt servant from service?

  In view of the rival submissions, the question which falls for determination is as to whether the expression removal from his office would mean dislodging him from holding that office and shifting him to another office. In other words, the power of the State Government of Uttarakhand to repatriate the accused would mean that it has power to remove. In our opinion, office means a position which requires the person holding it to perform certain duties and discharge certain obligations and removal from his office would mean to snap that permanently. By repatriation, the person holding the office on deputation may not be required to perform that duty and discharge the obligation of that office, but nonetheless he continues to hold office and by virtue thereof performs certain other duties and discharge certain other obligations. Therefore the power to repatriate does not embrace within itself the power of removal from office as envisaged under Section 19(1)(c) of the Act. The term removal means the act of removing from office or putting an end to an employment. The distinction between dismissal and removal from service is that former ordinarily disqualifies from future employment but the latter does not. 

REPORTABLE

                 IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 459 OF 2013

           

STATE OF UTTARAKHAND  Vs YOGENDRA NATH ARORA 

Citation;(2013) 14 SCC 299

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Restraint on alternative employment during contracted period of service when justified

 Negative covenants operative during the period of employment when the employee is bound to serve his employer exclusively are not to be regarded as restraint of trade and therefore do not fall under s. 27 of the Contract Act. A negative covenant that the employee would not engage himself in trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one-sided.

Supreme Court of India

Niranjan Shankar Golikari vs The Century Spinning And Mfg. Co. ... on 17 January, 1967

Equivalent citations: 1967 AIR 1098, 1967 SCR (2) 378

Bench: Shelat

CITATION:
1967 AIR 1098 1967 SCR (2) 378

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