Hi All,
M working in a pvt. Ltd. Company from last 8 years. Now my company is going to shut down. And the company is taking resignation letter from the employee, giving three months CTC. And threatening the employees to resign otherwise they will terminate the employee. In my case I am pregnant. And I refused to resign and told them to give me 6 months compensation for my pregnancy. But they refused and forced me to resign. I resigned bcoz I was stressed. Now, can I file a case against the company for forced resignation?? And is there any chance to get compensation for my pregnancy duration coz I cannot get any job in the market due to pregnancy??
From India, Delhi
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1M working in a pvt. Ltd. Company from last 8 years. Now my company is going to shut down. And the company is taking resignation letter from the employee, giving three months CTC. And threatening the employees to resign otherwise they will terminate the employee. In my case I am pregnant. And I refused to resign and told them to give me 6 months compensation for my pregnancy. But they refused and forced me to resign. I resigned bcoz I was stressed. Now, can I file a case against the company for forced resignation?? And is there any chance to get compensation for my pregnancy duration coz I cannot get any job in the market due to pregnancy??
From India, Delhi
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In today's era, an employer is misconceived if he thinks that he can avoid paying maternity benefits admissible under the Maternity Benefit Act, 1961. The Act clearly provides authorities under the Act who can enforce payment of benefits under the Act. All an aggrieved woman has to do is make a representation to an inspector appointed under the Act for the withdrawal of benefits admissible under the Act. An employer cannot dismiss or discharge a pregnant woman merely because of her absence under section 12 of the Act, and if he does so, he can be prosecuted, and the criminal court can punish him with imprisonment of not less than three months under section 21 of the Act. Please refer to the Municipal Corporation of Delhi case decided by the Apex court in 2000 in this regard.
Even if one finds laxity on the part of the inspector to get the dues, file an application under the RTI Act, 2005, before the CPIO of the labor department seeking information about the status of the representation given by her and what steps were taken by him on it as regards lodging of criminal prosecution against the erring employer or manager. It may be noted that under section 2(f) of the RTI Act, information can be obtained from a private body if the information can be accessed by a public authority. Since the inspector is a public authority and is duty-bound under the Act to ensure compliance with the provisions under the Act, he can access information from a private employer, and so the aggrieved woman can obtain information from him about the status of payment of maternity benefits to her. Unfortunately, if the employer has dismissed or terminated her, what steps the inspector has taken to nullify it.
From India, New Delhi
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Even if one finds laxity on the part of the inspector to get the dues, file an application under the RTI Act, 2005, before the CPIO of the labor department seeking information about the status of the representation given by her and what steps were taken by him on it as regards lodging of criminal prosecution against the erring employer or manager. It may be noted that under section 2(f) of the RTI Act, information can be obtained from a private body if the information can be accessed by a public authority. Since the inspector is a public authority and is duty-bound under the Act to ensure compliance with the provisions under the Act, he can access information from a private employer, and so the aggrieved woman can obtain information from him about the status of payment of maternity benefits to her. Unfortunately, if the employer has dismissed or terminated her, what steps the inspector has taken to nullify it.
From India, New Delhi
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Dear Manishi48,
Now you cannot do anything about the forced resignation. Also, what evidence do you have to prove the forced resignation?
My advice to you is to be happy for yourself now that your child is coming into this wonderful world. Consider that whatever has happened is good for you and good for your child. God has some better plans for you. Enjoy your motherhood. Wishing you all the best.
From India, Mumbai
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Now you cannot do anything about the forced resignation. Also, what evidence do you have to prove the forced resignation?
My advice to you is to be happy for yourself now that your child is coming into this wonderful world. Consider that whatever has happened is good for you and good for your child. God has some better plans for you. Enjoy your motherhood. Wishing you all the best.
From India, Mumbai
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Dear Sushilkluthra,
Thank you so much for your contribution with case law. However, the given case is not of dismissal or termination but it is a resignation. And it is very difficult to prove now that the said resignation is forcibly taken.
We should academically discuss whether there is a chance to prove that the resignation was taken forcibly.
From India, Mumbai
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Thank you so much for your contribution with case law. However, the given case is not of dismissal or termination but it is a resignation. And it is very difficult to prove now that the said resignation is forcibly taken.
We should academically discuss whether there is a chance to prove that the resignation was taken forcibly.
From India, Mumbai
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Two remedies are available to the aggrieved woman. If she was a workman, then her forced resignation is covered under "otherwise terminates" of section 2A of the ID Act and can be challenged before the labor court. Otherwise, she can challenge before the civil court on the ground of coercion. Besides, she cannot be denied maternity benefits, which must be paid in advance to some extent. It should be remembered that no one serves in such disputes on a platter. Everything is decided based on evidence.
From India, New Delhi
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From India, New Delhi
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What is your designation. What is your company producing. Is it covered under Factories Act. Is there any workers union.
From India, New Delhi
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From India, New Delhi
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When the company is going to be locked out it is more important to see if the formalities connected with the closure of establishment as per section 25 FF of the Industrial Disputes Act are followed. If your establishment has not been employing more than 100 employees during the last 12 months, naturally, they can close down the operations just by informing the employees of the closure 2 months before such closure, marking a copy to the Labour Officer, and paying retrenchment compensation as per section 25F which will be equal to 15 days pay for each year of service. In case you have less than 50 employees, intimation to Labour department is also not required but only a report of closure would be sufficient.
The Maternity Benefits Act does not prohibit closure of establishment due to the reason that the establishment has a preganant employee. Therefore, in the context of closure, I don’t find any merit in your demand for 6 months salary as compensation. At the same time your demand for payment of 4 months’ salary as retrenchment compensation (calculated at the rate of 15 days salary for every completed year of service) and 2 months notice or salary for 2 months in lieu of notice will be justified.
Madhu.T.K
From India, Kannur
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The Maternity Benefits Act does not prohibit closure of establishment due to the reason that the establishment has a preganant employee. Therefore, in the context of closure, I don’t find any merit in your demand for 6 months salary as compensation. At the same time your demand for payment of 4 months’ salary as retrenchment compensation (calculated at the rate of 15 days salary for every completed year of service) and 2 months notice or salary for 2 months in lieu of notice will be justified.
Madhu.T.K
From India, Kannur
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It may be remembered that the liability of an employer for damages due to illegal deemed termination, accrued in favor of the aggrieved woman, cannot be curtailed merely because of the future closure of the company because the cause of action had already arisen. Similarly, dues admissible under the Maternity Benefit Act cannot be denied because of the later closure of the company. I am trying to know her designation to see whether she is covered under the ID Act.
From India, New Delhi
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From India, New Delhi
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Hello Mr. Sushil, My company is a CRO (contract research organization). Its a clinical research organisation and my designation is Sr. Research officer.
From India, Delhi
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From India, Delhi
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Though apparently your organization falls under the ID Act, you do not appear to be a workman. Therefore, you are out of the purview of this Act. The remedy of filing a suit for declaration, recovery of damages, and consequential recovery of maternity benefits may be pursued through the civil court.
From India, New Delhi
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From India, New Delhi
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The ground of a civil suit should be the nullity of the offer of resignation because of coercion on the part of the employer in terms of the provisions of the Contract Act. Forced resignation may not have a remedy under the Shops and Establishment Act in view of settled decisions.
From India, New Delhi
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From India, New Delhi
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I think litigation always helps. But the more pressing question is - are you prepared to invest for that unless you are eligible to be helped free of cost by the 'Legal Services Authority'. Further presuming that you win the legal battle, apart from the maternity leave of 84 days with pay, you may get only Rs 2500/- (two thousand and five hundred only) as a medical bonus if no prenatal confinement and postnatal care are provided for by the employer free of charge.
From India, Bangalore
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From India, Bangalore
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In my view, whatever Mr. T K Madhu has opined appears to be logical and legally viable. The fact remains that when a company has offered the compensation equal to 3 months CTC, his liability under the Labor Laws comes to an end.
As regards the Maternity Benefits Act of 1961, the benefits will accrue 6 weeks pre-natal and 6 weeks post-natal, which have not taken place as of date. Ms. Manushi is expecting a delivery but the probable date is not identified. In such a case, considering the designation and her status, it would be prudent enough to accept the offer and lodge the case in the civil court or appropriate authority for further benefits such as Gratuity. Also, PF dues (if deducted from salary earlier as per the Act).
From India, Mumbai
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As regards the Maternity Benefits Act of 1961, the benefits will accrue 6 weeks pre-natal and 6 weeks post-natal, which have not taken place as of date. Ms. Manushi is expecting a delivery but the probable date is not identified. In such a case, considering the designation and her status, it would be prudent enough to accept the offer and lodge the case in the civil court or appropriate authority for further benefits such as Gratuity. Also, PF dues (if deducted from salary earlier as per the Act).
From India, Mumbai
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It is not the medical bonus of Rs. 3500 (not Rs. 2500) but the issue is around payment of salary for 84 days when the childbirth takes place after the company is closed down following the legal steps involved and fulfilling all the requirements. I do not think that the appropriate authority would ask the company to postpone the closure just to accommodate a pregnant woman employee.
More importantly, a company will not decide to close down its operations just because the company has a woman employee who is pregnant and who would demand maternity benefits. There can be a dispute if the maternity benefit starts now and the company's closure formalities are yet to come. It is true if the expected date of delivery is just 6 weeks from now because 6 weeks is the maximum leave that an employee can avail before the expected date of delivery.
Madhu.T.K
From India, Kannur
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More importantly, a company will not decide to close down its operations just because the company has a woman employee who is pregnant and who would demand maternity benefits. There can be a dispute if the maternity benefit starts now and the company's closure formalities are yet to come. It is true if the expected date of delivery is just 6 weeks from now because 6 weeks is the maximum leave that an employee can avail before the expected date of delivery.
Madhu.T.K
From India, Kannur
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If you do not do anything, you will remain in the same situation as today. If you fight for your rights and win your battle, you will get mental satisfaction. Put your achievements on this site so that similarly aggrieved individuals may gain confidence, acting as a deterrent for citizens who believe in infringing upon others' rights. Remember, the Trade Union Act was not achieved overnight. Nowadays, courts take a stringent view and impose exemplary costs in many cases.
From India, New Delhi
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From India, New Delhi
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I do not dispute that you should fight for your rights. But before that, just answer to my apprehension (yes, it is an apprehension only) that will an employer close down the unit just because one lady employee is waiting to demand maternity leave?
If you take the verdicts by courts, we will get different rulings, against and in favor of workmen, but at the end of the day, we all will rest in one thing, that is, without canvass, you cannot draw anything. After having made a Trade Union Act or having united for the workers, what do the workers get when the ID Act itself is amended (going to be amended) giving employers the authority to retrench the workers or close down the unit without taking any approval from the Govt? What is welfare when those who have been enjoying the benefits of ESI and Provident Fund Pension are asked to forget about these social welfare schemes and go for insurance which will never give coverage to existing diseases and aged parents even after paying huge premiums???
Madhu.T.K
From India, Kannur
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If you take the verdicts by courts, we will get different rulings, against and in favor of workmen, but at the end of the day, we all will rest in one thing, that is, without canvass, you cannot draw anything. After having made a Trade Union Act or having united for the workers, what do the workers get when the ID Act itself is amended (going to be amended) giving employers the authority to retrench the workers or close down the unit without taking any approval from the Govt? What is welfare when those who have been enjoying the benefits of ESI and Provident Fund Pension are asked to forget about these social welfare schemes and go for insurance which will never give coverage to existing diseases and aged parents even after paying huge premiums???
Madhu.T.K
From India, Kannur
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Through the civil suit, if the forced resignation is set aside after passing a decree, damages are also awarded, which may vary from 9 months to three years of salary. Besides, maternity benefits are also admissible. Since the cause of action has already arisen, the closure of the unit is immaterial because the issue is not the closure of the unit before the court. Further, what is the policy of the government of the day may have to pass the test on the floor of parliament. Who knows how things shape up. But under the present ID Act, still, the rights of the workman are protected to a large extent, but there are persons who do not like to facilitate workmen to enjoy their rights, and litigation is becoming a costlier venture. Please read Justice DA Desai's judgments.
From India, New Delhi
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From India, New Delhi
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Dear All,
Kindly go through the below news article. This order is by the Chennai High Court and is not devoid of challenge before a bigger bench or the Supreme Court.
Madras High Court stays termination of TCS employee - The Times of India
Regards,
Octavious
From India, Mumbai
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Kindly go through the below news article. This order is by the Chennai High Court and is not devoid of challenge before a bigger bench or the Supreme Court.
Madras High Court stays termination of TCS employee - The Times of India
Regards,
Octavious
From India, Mumbai
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Thank you so much Octavius for sharing the latest judgment of Madras HC, and that too on a current topic. This judgment would be a very fitting case if there is a termination of a pregnant woman.
In the current topic, there is no termination. It is a case of resignation. This resignation is a forced one and needs to be proved first. That seems to be difficult now, according to me.
In my earlier post, I had invited discussion on whether there is a chance to prove that this resignation is a forced resignation. But no one discussed along these lines.
From India, Mumbai
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In the current topic, there is no termination. It is a case of resignation. This resignation is a forced one and needs to be proved first. That seems to be difficult now, according to me.
In my earlier post, I had invited discussion on whether there is a chance to prove that this resignation is a forced resignation. But no one discussed along these lines.
From India, Mumbai
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Please do not ignore the previous elaborate discussion on forced resignation and the appropriate forum for pursuing it. When we discuss the merits of the case, everything depends on the available evidence. The plaintiff must prove the manner of coercion through facts known to her. Her lawyer needs to carefully sift through that chain of evidence.
From India, New Delhi
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From India, New Delhi
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Dear Korgaonkar,
Circumstantial evidence determines whether a resignation was forced or voluntary. In the above case, the circumstantial evidence favors the lady, as she and others were forced to resign. These individuals who were coerced into resigning can support her claims.
She could potentially succeed in this case by filing a writ petition in the High Court and also lodging a complaint with the Human Rights Commission for additional support.
Regards,
Octavious
From India, Mumbai
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Circumstantial evidence determines whether a resignation was forced or voluntary. In the above case, the circumstantial evidence favors the lady, as she and others were forced to resign. These individuals who were coerced into resigning can support her claims.
She could potentially succeed in this case by filing a writ petition in the High Court and also lodging a complaint with the Human Rights Commission for additional support.
Regards,
Octavious
From India, Mumbai
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Dear Octavious, Though I appreciated your post, I do not agree with you that the lady can easily win her case. Therefore I suggested in one of my posts as under:
From India, Mumbai
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From India, Mumbai
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Dear Korgaonkar,
When I say she can easily win the case, I mean she has a very good chance of winning the case based on the merits that are favoring her. The toil she has to put in while she battles the case out is inevitable.
Regards,
Octavious
From India, Mumbai
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When I say she can easily win the case, I mean she has a very good chance of winning the case based on the merits that are favoring her. The toil she has to put in while she battles the case out is inevitable.
Regards,
Octavious
From India, Mumbai
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The present case is a case of alleged forced resignation and not of termination. Normally, disputed questions of fact are not entertained before the HC in writ proceedings. So, the remedy will lie before the civil court only as discussed earlier. Further, it will not lie before the Human Rights Commission in view of the Santosh Hospital case of 2005, a decision of the Madras HC to the effect that the commission cannot entertain complaints against a private body, but only if such a body is performing public functions when the commission can entertain the complaint.
From India, New Delhi
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From India, New Delhi
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Dear Manisha,
In the long run, the company has to pay all the benefits to you. In the same case, if the delivery time is within 6 weeks (equivalent to 6 months' salary) or more than that, only 3 months' salary will be provided.
All the best,
Kanwar
From India, New Delhi
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In the long run, the company has to pay all the benefits to you. In the same case, if the delivery time is within 6 weeks (equivalent to 6 months' salary) or more than that, only 3 months' salary will be provided.
All the best,
Kanwar
From India, New Delhi
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Dear Sushil I hope you understand the meaning of word WRIT . Human Right is for Humans, where does the question of organization or its nature come in to play. Regards Octavious
From India, Mumbai
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From India, Mumbai
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Dear Octavious,
I do not understand why you are questioning whether I understand the meaning of WRIT. Brother, my whole life has been spent contesting writs. By the way, your advice was to file a writ petition in the HC and lodge a complaint before the Human Rights Commission. Please be well aware of the scope of writ jurisdiction and the jurisdiction of the Commission when complaints of human rights violations are made. I believe a reference to the decision in the Santosh Hospital case would have clarified the scope of jurisdiction, indicating that the Commission will not entertain complaints against a private company. We should not allow ordinary persons to get involved in improper actions.
Thank you.
From India, New Delhi
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I do not understand why you are questioning whether I understand the meaning of WRIT. Brother, my whole life has been spent contesting writs. By the way, your advice was to file a writ petition in the HC and lodge a complaint before the Human Rights Commission. Please be well aware of the scope of writ jurisdiction and the jurisdiction of the Commission when complaints of human rights violations are made. I believe a reference to the decision in the Santosh Hospital case would have clarified the scope of jurisdiction, indicating that the Commission will not entertain complaints against a private company. We should not allow ordinary persons to get involved in improper actions.
Thank you.
From India, New Delhi
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Dear Sushil,
I am not contesting here about your knowledge, and I don't doubt the extent to which you might have filed writs. I am stating the importance of a writ and its jurisdiction, which is self-explanatory under Article 226 for the High Court and Article 32 for the Supreme Court. I have clearly stated that the approach to the Human Rights Commission is for extra mileage and not for resolution. Law and justice are different, and the strategy is totally different from both. The application of strategy is the tool to achieve justice within the maze of the law.
Regards,
Octavious
From India, Mumbai
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I am not contesting here about your knowledge, and I don't doubt the extent to which you might have filed writs. I am stating the importance of a writ and its jurisdiction, which is self-explanatory under Article 226 for the High Court and Article 32 for the Supreme Court. I have clearly stated that the approach to the Human Rights Commission is for extra mileage and not for resolution. Law and justice are different, and the strategy is totally different from both. The application of strategy is the tool to achieve justice within the maze of the law.
Regards,
Octavious
From India, Mumbai
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Dear Octavius,
Strategy should be chalked out within the permissible legal framework. Sometimes, heavy costs are imposed when disposing of writs after notice has been issued and the respondent cites decisions regarding the non-maintainability of the petition on these grounds. The other side should not be considered a gullible person. The mighty employers have a team of seasoned advocates who advise them. When you say "within the maze of law," it should analyze the above contours and then only act. So, even drawing said extra mileage would be a waste of time and money.
Regards.
From India, New Delhi
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Strategy should be chalked out within the permissible legal framework. Sometimes, heavy costs are imposed when disposing of writs after notice has been issued and the respondent cites decisions regarding the non-maintainability of the petition on these grounds. The other side should not be considered a gullible person. The mighty employers have a team of seasoned advocates who advise them. When you say "within the maze of law," it should analyze the above contours and then only act. So, even drawing said extra mileage would be a waste of time and money.
Regards.
From India, New Delhi
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Dear Sushil,
Please revisit the Writ Jurisdiction. Good and very good lawyers think from the point of Justice and not Law. I am speaking from the point of Justice. You are looking and talking about threats and setbacks, but I am concentrating on opportunities and strength. Anyways, let's agree to disagree.
Regards, Octavious
From India, Mumbai
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Please revisit the Writ Jurisdiction. Good and very good lawyers think from the point of Justice and not Law. I am speaking from the point of Justice. You are looking and talking about threats and setbacks, but I am concentrating on opportunities and strength. Anyways, let's agree to disagree.
Regards, Octavious
From India, Mumbai
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Dear Octavious,
Please refer to one of the latest decisions of Babu Lal vs. Guru Harkishan School, decided by the Delhi High Court on 1.5.2013, regarding the contention of forced resignation of the petitioner in writ jurisdiction. The petitioner was denied justice in the writ jurisdiction and asked to seek relief before the civil court. Kindly revisit your approach and thoughts so that the aggrieved may truly obtain justice and not end up as a rolling stone at the hands of others.
Regards
From India, New Delhi
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Please refer to one of the latest decisions of Babu Lal vs. Guru Harkishan School, decided by the Delhi High Court on 1.5.2013, regarding the contention of forced resignation of the petitioner in writ jurisdiction. The petitioner was denied justice in the writ jurisdiction and asked to seek relief before the civil court. Kindly revisit your approach and thoughts so that the aggrieved may truly obtain justice and not end up as a rolling stone at the hands of others.
Regards
From India, New Delhi
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Dear Sunil
The lady has to invoke Writ Petition under Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Example :- Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others .
The protection of Article 21 is wide enough and it was further widened in the case of Bandhua Mukti Morcha v. Union of India and others in respect of bonded labour and weaker section of the society.
Article 21 which guarantees by way of fundamental right to every person residing in India the right to effective and dignified existence with a view to leading a happy and a healthy life. This in its turn would necessarily imply the guarantee of being ensured adequate means of livelihood and work.
Right to work and to carry on any legally permissible occupation or avocation in life with a view to enjoy adequate means of livelihood for leading a healthy and meaningful life would remain well sustained on the combined operation of Articles 14, 19(1)(g) and 21.
Thus before a person can be deprived of his life and personal liberty as guaranteed by Article 21 by any procedure established by law, such law must steer clear of all the restrictions imposed by Articles 14 and 19(1)(g) on the power of the concerned Legislature to enact such laws.
Article 21 assures the right to live with human dignity, free from exploitation, in above case there was no clear procedure followed, as required and prescribed under the law, hence the act of employer was riddled with unreasonableness and mala fide intentions.
K. Ramaswamy J. in his concurring judgment in Delhi Transport Corporation D.T.C v. Mazdor Congres and Others case laid down in para 267 that “Before depriving an employee of the means of livelihood to himself and his dependents, i.e. job, the procedure prescribed for such deprivation must, therefore, be just, fair and reasonable tinder Arts. 21 and 14 and when infringes Art. 19(1)(g) must be subject to imposing reasonable restrictions under Art. 19(5).
Hope this would clarity on my strategy.
Regards
Octavious
From India, Mumbai
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The lady has to invoke Writ Petition under Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Example :- Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others .
The protection of Article 21 is wide enough and it was further widened in the case of Bandhua Mukti Morcha v. Union of India and others in respect of bonded labour and weaker section of the society.
Article 21 which guarantees by way of fundamental right to every person residing in India the right to effective and dignified existence with a view to leading a happy and a healthy life. This in its turn would necessarily imply the guarantee of being ensured adequate means of livelihood and work.
Right to work and to carry on any legally permissible occupation or avocation in life with a view to enjoy adequate means of livelihood for leading a healthy and meaningful life would remain well sustained on the combined operation of Articles 14, 19(1)(g) and 21.
Thus before a person can be deprived of his life and personal liberty as guaranteed by Article 21 by any procedure established by law, such law must steer clear of all the restrictions imposed by Articles 14 and 19(1)(g) on the power of the concerned Legislature to enact such laws.
Article 21 assures the right to live with human dignity, free from exploitation, in above case there was no clear procedure followed, as required and prescribed under the law, hence the act of employer was riddled with unreasonableness and mala fide intentions.
K. Ramaswamy J. in his concurring judgment in Delhi Transport Corporation D.T.C v. Mazdor Congres and Others case laid down in para 267 that “Before depriving an employee of the means of livelihood to himself and his dependents, i.e. job, the procedure prescribed for such deprivation must, therefore, be just, fair and reasonable tinder Arts. 21 and 14 and when infringes Art. 19(1)(g) must be subject to imposing reasonable restrictions under Art. 19(5).
Hope this would clarity on my strategy.
Regards
Octavious
From India, Mumbai
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Dear Octavius,
Art. 21 violations are considered against the state or its agencies but not against private companies. Moreover, the present case involves alleged forceful resignation. The above judgment is not applicable here.
From India, New Delhi
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Art. 21 violations are considered against the state or its agencies but not against private companies. Moreover, the present case involves alleged forceful resignation. The above judgment is not applicable here.
From India, New Delhi
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Dear Sunil,
I appreciate your resilience, but you should know when to give up. The position of Article 21 you have defined was before the 1950s; things have come a long way since then. Anyways, I have made my point. I have nothing further to explain or add, hence I will not be participating further in this discussion.
Regards,
Octavious
From India, Mumbai
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I appreciate your resilience, but you should know when to give up. The position of Article 21 you have defined was before the 1950s; things have come a long way since then. Anyways, I have made my point. I have nothing further to explain or add, hence I will not be participating further in this discussion.
Regards,
Octavious
From India, Mumbai
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Dear Octavious,
When you have insisted on a point, it is essential that it should be thrashed out. Now, you mentioned the position of the article that I projected was pre-1950. However, please refer to the Constitution Bench decision of the Supreme Court in PD Shamdasani vs Central Bank of India, followed in the famous ADM Jabalpur case of 1976, and other subsequent cases where violations under Article 21 are held to be considered against the State. Furthermore, in the Bandhua Mukti Morcha case, the concept has been developed in regard to Public Interest Litigation (PIL) and sanctions against the State to implement various labor laws. The present case pertains to an individual only, specifically concerning her alleged forced resignation.
Regards,
Sushil
From India, New Delhi
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When you have insisted on a point, it is essential that it should be thrashed out. Now, you mentioned the position of the article that I projected was pre-1950. However, please refer to the Constitution Bench decision of the Supreme Court in PD Shamdasani vs Central Bank of India, followed in the famous ADM Jabalpur case of 1976, and other subsequent cases where violations under Article 21 are held to be considered against the State. Furthermore, in the Bandhua Mukti Morcha case, the concept has been developed in regard to Public Interest Litigation (PIL) and sanctions against the State to implement various labor laws. The present case pertains to an individual only, specifically concerning her alleged forced resignation.
Regards,
Sushil
From India, New Delhi
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Dear All,
One of my lady employees is on leave with a 50 days PL balance starting from 10 JAN 15 as the expected date of delivery is around May-15. She is requesting leave from January to July 15.
Please suggest how to provide her with benefits and specify the components of the salary to be paid during her maternity leave. Salary components include Basic, HRA, TA, and Others.
I suggested she take leave from 15 March to 31 May 15, but she mentioned that the doctor advised her to have bed rest.
Senior members, your valuable suggestions are greatly appreciated. This is urgent.
Thank you.
From India, Mumbai
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One of my lady employees is on leave with a 50 days PL balance starting from 10 JAN 15 as the expected date of delivery is around May-15. She is requesting leave from January to July 15.
Please suggest how to provide her with benefits and specify the components of the salary to be paid during her maternity leave. Salary components include Basic, HRA, TA, and Others.
I suggested she take leave from 15 March to 31 May 15, but she mentioned that the doctor advised her to have bed rest.
Senior members, your valuable suggestions are greatly appreciated. This is urgent.
Thank you.
From India, Mumbai
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She can take maternity leave 6 weeks prior to the expected date of delivery. If she wants more leave before childbirth, she can take PL provided the employer approves it. Since she already has 50 PL to her credit, she can go for that.
Salary during the maternity leave days should be the same as the salary paid when she attends duty. However, the reimbursement components of the salary, such as fuel, telephone, medical, etc., which are paid subject to the production of bills, shall not be paid.
The government is going to amend the Maternity Benefit Act, and with the amendment, the 12-week leave will become 24-week leave. There is no proposal to change the qualifying service, which may remain the same, i.e., 80 days. That means a woman having worked for 80 days (including the paid holidays and leave days) will get 6 weeks leave with pay as maternity leave. In addition to this, one month leave for sickness connected with childbirth. Above all, there would be a few months of leave either with pay (in case she has PL) or without pay, which should be treated as approved leave for the purposes of the Payment of Gratuity Act and other Acts wherein continuous service has been referred, like that of the Industrial Disputes Act in connection with lay off and retrenchment!
Madhu.T.K
From India, Kannur
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Salary during the maternity leave days should be the same as the salary paid when she attends duty. However, the reimbursement components of the salary, such as fuel, telephone, medical, etc., which are paid subject to the production of bills, shall not be paid.
The government is going to amend the Maternity Benefit Act, and with the amendment, the 12-week leave will become 24-week leave. There is no proposal to change the qualifying service, which may remain the same, i.e., 80 days. That means a woman having worked for 80 days (including the paid holidays and leave days) will get 6 weeks leave with pay as maternity leave. In addition to this, one month leave for sickness connected with childbirth. Above all, there would be a few months of leave either with pay (in case she has PL) or without pay, which should be treated as approved leave for the purposes of the Payment of Gratuity Act and other Acts wherein continuous service has been referred, like that of the Industrial Disputes Act in connection with lay off and retrenchment!
Madhu.T.K
From India, Kannur
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Dear Sushil,
I am really concerned about the way you are interpreting Article 21, so much so that even though I had claimed that I would not be participating in the discussion, I am compelled to go against my earlier statement and participate in the discussion to set things right.
You suggested that the remedy available for the lady is in the Civil Court. What remedy, other than injunction, is available to this lady in civil court, especially considering that the current scenario renders injunction not applicable to her?
The jurisdiction of Article 21 has been clearly defined in various cases, and these principles are applicable in situations where similar facts of law have been raised.
Article 21 ensures that it becomes the responsibility of the state to ensure that every citizen's right to life is protected. The right to life also includes the right to work and earn a living legitimately, which entails the termination of a job only through and after a due process prescribed under the law.
I suggest you delve into an in-depth study of Writ and its jurisdiction in civil law, instead of attempting to challenge a well-established position in law regarding Article 21 by legal luminaries and stalwarts.
Regards,
Octavious
From India, Mumbai
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I am really concerned about the way you are interpreting Article 21, so much so that even though I had claimed that I would not be participating in the discussion, I am compelled to go against my earlier statement and participate in the discussion to set things right.
You suggested that the remedy available for the lady is in the Civil Court. What remedy, other than injunction, is available to this lady in civil court, especially considering that the current scenario renders injunction not applicable to her?
The jurisdiction of Article 21 has been clearly defined in various cases, and these principles are applicable in situations where similar facts of law have been raised.
Article 21 ensures that it becomes the responsibility of the state to ensure that every citizen's right to life is protected. The right to life also includes the right to work and earn a living legitimately, which entails the termination of a job only through and after a due process prescribed under the law.
I suggest you delve into an in-depth study of Writ and its jurisdiction in civil law, instead of attempting to challenge a well-established position in law regarding Article 21 by legal luminaries and stalwarts.
Regards,
Octavious
From India, Mumbai
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Dear Friends,
I am not a legal expert, so I cannot contribute beyond a certain level in this thread. However, after reading the interactions, I found myself clicking on "Remove post" on certain posts with great discontent. I may be a very small person compared to you all, but I would still like to offer some advice:
1. We are all learners here, including everyone.
2. We are all responsible for our own learning.
3. Learning is an interactive process.
4. We should maintain professional and polite conduct as outlined by the site administrator.
Thank you.
From India, Mumbai
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I am not a legal expert, so I cannot contribute beyond a certain level in this thread. However, after reading the interactions, I found myself clicking on "Remove post" on certain posts with great discontent. I may be a very small person compared to you all, but I would still like to offer some advice:
1. We are all learners here, including everyone.
2. We are all responsible for our own learning.
3. Learning is an interactive process.
4. We should maintain professional and polite conduct as outlined by the site administrator.
Thank you.
From India, Mumbai
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Dear Korgaonkar,
Don't be disheartened. This kind of exchange between two people is normal.
I am aware I have been very sharp with my words and have been so to force Sunil to think in a fresh light void of any bias, but it seems it has failed.
For example, Sunil had suggested specific relief, but that again is not possible because in this case the contract has ceased to exist. For example, Priyanka Puri vs. American Express Case.
Sunil was not unruly during our discussion; it was me who gave him a chance and reason to be unruly. Sunil did not rub me the wrong way in any manner during this discussion, but if he continues a similar discussion before someone else with the same passion and void of in-depth study, he will surely rub people in the wrong direction and be left with the only option of licking his wounds.
I understand that he is very passionate and highly opinionated, which is really good for an upcoming professional. However, compromising the learning curve is not something any professional should practice, but that is exactly what Sunil is doing.
From the discussion, I gathered that he is an upcoming professional and would be junior to me from a professional angle. Hence, I spent time explaining things to him. Unfortunately, I couldn't drive a point across to him and had to resort to other methods to drive the point home.
For now, you can relax because this post, in the last two days, has become the most read post due to Sunil and me. There is always a silver lining on a dark cloud, always...
Regards,
Octavious
From India, Mumbai
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Don't be disheartened. This kind of exchange between two people is normal.
I am aware I have been very sharp with my words and have been so to force Sunil to think in a fresh light void of any bias, but it seems it has failed.
For example, Sunil had suggested specific relief, but that again is not possible because in this case the contract has ceased to exist. For example, Priyanka Puri vs. American Express Case.
Sunil was not unruly during our discussion; it was me who gave him a chance and reason to be unruly. Sunil did not rub me the wrong way in any manner during this discussion, but if he continues a similar discussion before someone else with the same passion and void of in-depth study, he will surely rub people in the wrong direction and be left with the only option of licking his wounds.
I understand that he is very passionate and highly opinionated, which is really good for an upcoming professional. However, compromising the learning curve is not something any professional should practice, but that is exactly what Sunil is doing.
From the discussion, I gathered that he is an upcoming professional and would be junior to me from a professional angle. Hence, I spent time explaining things to him. Unfortunately, I couldn't drive a point across to him and had to resort to other methods to drive the point home.
For now, you can relax because this post, in the last two days, has become the most read post due to Sunil and me. There is always a silver lining on a dark cloud, always...
Regards,
Octavious
From India, Mumbai
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Dear Octavious,
Sad it is to note that despite good piece of advice from a learned member , you have not restrained yourself in using loose language. You seem to be taking undue liberties on this site because of little longer association on this site because you have admitted that consciously you used sharp words. But kindly be aware that such attitude belittles oneself. You have cited an inapplicable decision of Prinka Puri case.
First of all I may refer in brief the details of the said Priyanka Puri case which is inapplicable in view of the self explanatory distinct facts not related to illegal termination. The relevant passages are extracted:
Delhi High Court
American Express Bank Ltd. vs Ms. Priya Puri on 24 May, 2006
Equivalent citations: (2006) IIILLJ 540 Del
1. This order shall dispose of Plaintiff's application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and the defendant's application under Order 39 Rule 4 of Code of Civil Procedure to vacate the interim order dated 15th October, 2005 whereby by the defendant was restrained from using the information and data regarding the wealth of the customers of the plaintiff bank and customers' wealth management operations and wealth View program/operations of the plaintiff's bank.
2. Brief facts to comprehend the controversies between the parties are that the plaintiff filed the suit for permanent and mandatory injunction against the defendant seeking inter-alia a restrain against the defendant from using or disclosing any information and trade secrets relating to the business and operations of the plaintiff and to solicit or induce any of the customers of the plaintiff especially those who are part of the wealth management operation and/or wealth View programme and from breaching the confidentiality term as per letter of appointment/code of conduct including customers privacy principles/policies. The plaintiff also sought mandatory injunction against the defendant to deliver up all the confidential information, data and trade secrets in particular the customer list of wealth management operations and/or the wealth View programme/operations of the plaintiff available with the defendant or under her control.
……..
48. What is inevitable to infer in the whole facts and circumstances is that the defendant performed extremely well and her desire to leave has been interpreted by the plaintiff as losing all the business which she was able to get for the plaintiff in previous years and therefore, the plea of defendant getting information about the plaintiff's customers illegally and unlawfully and alleging confidentiality about the same, was made as an afterthought to pressurize her either not to leave the Plaintiff or to teach her a lesson and curtail her future prospect for employment. The defendant can not be restrained from dealing with the persons who are banking with the plaintiff. Such an injunction will affect even those customers /persons who would like to bank with some other banks than plaintiff despite banking with the plaintiff. Some of the customers have given letters and communications which have been produced on record to show that it is their decision to be with any bank/institution for managing their investment.
49. In totality of circumstances the plaintiff bank has failed to make out a strong prima facie case in his favor. The inconvenience caused to the defendant shall be much more in case the injunction as prayed by the plaintiff is granted in his favor and therefore, the balance of convenience is in favor of defendant. Such an injunction as prayed by the plaintiff would rather lead to multiplicity of proceedings.
50. For the foregoing reasons the order dated 15th October, 2005 needs to be vacated and injunction application filed by the plaintiffs merits rejection and therefore, I.A. No. 8224/2005 filed by the plaintiffs is accordingly dismissed and IA No. 8893/2005 filed by the defendant is hereby allowed. The interim order dated 15th October, 2005 is vacated.
On the contrary, you may not agree with my view point, does not mean that I should follow your wrong notions. In order clear the mist caused by you because of the citation of the above decision the following decisions extract amply clarify the view points I projected and I will not enter into further wits in reply to your comments:
i) The declaration of termination of service was illegal was made and further damages were awarded:
Kolkata High Court (Appellete Side)
Beer Bikram Kumar Singh vs Datex-Ohmeda (India) Pvt. Ltd on 21 March, 2014
Once the declaration was made that, inter alia, the termination of service was wrongful by the judgment and decree dated 21st June, 2007, the stigma stood removed. Till before that time we accept that such stigma remained attached to the plaintiff giving rise to circumstances which prevented him from obtaining employment elsewhere. It follows that damages must be assessed as can be awarded to the plaintiff following the wrongful termination of his service on 20th February, 2003 till the date of the impugned judgment and decree being 21st June, 2007. In assessing such damages we can do the same from the pre-estimate by particulars given in paragraph 49 of the plaint but only those which have been duly proved and appear to us to be reasonable. Those particulars that are unacceptable to us is because they relate to reimbursibles and the plaintiff not having worked did not incur any reimbursible expenses.
ii) Punjab-Haryana High Court
M/S Dsm India Pvt. Ltd vs Mr.Maanav Yashroy & Ors on 9 January, 2014
12. In this manner, the trial Court appears to have examined the matter in right perspective and dismissed the application under Order 7 Rule 11 CPC filed by petitioner defendant-company, by virtue of impugned order, which, in substance, is as under (Paras 10 and 11):-
"10. It is suit for declaration with consequential relief of damages. As per plaint, only which is relevant stage, the plaintiff has challenged the termination order issued by defendant company and thereby has sought the relief of declaring the impugned termination order as illegal. Along with this, the plaintiff has prayed for directions to the defendant company to comply with the contractual obligations prior to terminating the plaintiff. Consequently, the plaintiff has sought the relief of exemplary damages to be awarded to the plaintiff. The plaintiff has not prayed for reinstatement in the defendant company. Hence the question of enforcing the specific contract between the parties does not arise. The plaintiff is not enforcing the personal contract by getting directions to the defendant company to follow due process of law prior to terminate the plaintiff. It is a mixed question of law and fact as to whether the plaintiff company followed the proper procedure before terminating the plaintiff from his job and has to be proved by cogent evidence at the stage of evidence. This is not the stage for this matter to be looked in. As far as the contention raised by the counsel for applicant regarding personal contracts and not to enforce the same etc. is related then it is pertinent to mention here that any Arvind Kumar Sharma 2014.01.17 12:29 I attest to the accuracy and integrity of this document Chandigarh contract/agreement whether personal commercial or specific does not give power to any body to bye pass the due procedure of law as well as contractual obligations between the parties. Meaning thereby, if defendant has any power to exercise then it has to be exercised by following due process of law and if question of not following due process has been raised by the plaintiff then he has the right to prove the same at the stage of evidence.
11. Moreover, the plaintiff has sought the relief of exemplary damages in consequences of relief of declaration. Hence, the contention of applicant that the relief of declaration simpliciter is not maintainable, is of no consequence.
13. Meaning thereby, the trial Court has recorded the cogent grounds in this regard.
iii) No injunction was admissible in case of termination of service in private employment:
Delhi High Court
Ge Capital Transportation ... vs Shri Tarun Bhargava on 20 March, 2012
5… Also, even assuming the termination is not as per the contract, at best the entitlement will be to claim damages which naturally flow out of the breach i.e. of the illegal termination of contract
11. Therefore, looking at the matter from the point of view of the contract of personal service not being enforceable under Section 14(1)(b) of the Specific Relief Act, 1963, the contract being determinable in nature and hence cannot be enforced as per Section 14(1)(c) of the Specific Relief Act, 1963 or that injunction could not be granted to prevent breach of a contract which cannot be specifically enforced, the suit was clearly barred and not maintainable.
iv) Similarly, in another case, the High Court granted consolidated damages against illegal termination :
Delhi High Court
St Johns School & Anr vs Asha Bhan on 19 July, 2012
“The facts giving rise to filing of this appeal can be summarized as under:-
The respondent/plaintiff was employed as a Nursery/KG teacher with appellant No. 1 St. John‟s School, which is being run and managed by appellant No. 2 Delhi Mar Thoma Church Society. The services of the plaintiff/respondent were terminated with effect from 01.10.2001. The case of the plaintiff/respondent is that though her salary was Rs.7331/- per month, the appellants/defendants were wrongfully and illegally deducting a sum of Rs 2706/- per month from her salary and when she protested against such deduction, the defendants/appellants threatened to terminate her services. A sum of Rs 64,896/- was deducted from her salary in this manner, in about 24 months. This was also her case that on a strong protest by her in July-August, 2001, the defendants/appellants offered her a package of 05 month salary in case she submitted her resignation. They also threatened her to resign or else they would terminate her services, in case the offer was not accepted by her. According to the plaintiff/respondent, she refused to resign as a result of which she was not allowed to take classes with effect from 01.08.2001 and subsequently her services were terminated with effect from 01.10.2001. She accordingly claimed Rs 64,896/- being the amount wrongfully deducted from her services, Rs 21,993/- as arrears of salary, Rs 7,18,438/- on account of damages for illegal and wrongful termination of her services and Rs 50,000/- on account of damages for mental sufferings.
17. Thus, the plaintiff/respondent is entitled to recover the following amounts from the defendants/appellants:
(i) Rs.64,902/- being the amount wrongfully deducted from her salary
(ii) Rs.7,331/- towards arrears of salary for August, 2001.
(iii) Rs. 244/- towards salary of one day in September, 2001 and
(iv) Rs.3,50,000/- being the consolidated damages on account of wrongful termination of her services, thereby making a total of Rs.4,22,477/-.
The issues are decided accordingly.”
I think the point is beyond doubt now:
Regards
Sushil
From India, New Delhi
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Sad it is to note that despite good piece of advice from a learned member , you have not restrained yourself in using loose language. You seem to be taking undue liberties on this site because of little longer association on this site because you have admitted that consciously you used sharp words. But kindly be aware that such attitude belittles oneself. You have cited an inapplicable decision of Prinka Puri case.
First of all I may refer in brief the details of the said Priyanka Puri case which is inapplicable in view of the self explanatory distinct facts not related to illegal termination. The relevant passages are extracted:
Delhi High Court
American Express Bank Ltd. vs Ms. Priya Puri on 24 May, 2006
Equivalent citations: (2006) IIILLJ 540 Del
1. This order shall dispose of Plaintiff's application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and the defendant's application under Order 39 Rule 4 of Code of Civil Procedure to vacate the interim order dated 15th October, 2005 whereby by the defendant was restrained from using the information and data regarding the wealth of the customers of the plaintiff bank and customers' wealth management operations and wealth View program/operations of the plaintiff's bank.
2. Brief facts to comprehend the controversies between the parties are that the plaintiff filed the suit for permanent and mandatory injunction against the defendant seeking inter-alia a restrain against the defendant from using or disclosing any information and trade secrets relating to the business and operations of the plaintiff and to solicit or induce any of the customers of the plaintiff especially those who are part of the wealth management operation and/or wealth View programme and from breaching the confidentiality term as per letter of appointment/code of conduct including customers privacy principles/policies. The plaintiff also sought mandatory injunction against the defendant to deliver up all the confidential information, data and trade secrets in particular the customer list of wealth management operations and/or the wealth View programme/operations of the plaintiff available with the defendant or under her control.
……..
48. What is inevitable to infer in the whole facts and circumstances is that the defendant performed extremely well and her desire to leave has been interpreted by the plaintiff as losing all the business which she was able to get for the plaintiff in previous years and therefore, the plea of defendant getting information about the plaintiff's customers illegally and unlawfully and alleging confidentiality about the same, was made as an afterthought to pressurize her either not to leave the Plaintiff or to teach her a lesson and curtail her future prospect for employment. The defendant can not be restrained from dealing with the persons who are banking with the plaintiff. Such an injunction will affect even those customers /persons who would like to bank with some other banks than plaintiff despite banking with the plaintiff. Some of the customers have given letters and communications which have been produced on record to show that it is their decision to be with any bank/institution for managing their investment.
49. In totality of circumstances the plaintiff bank has failed to make out a strong prima facie case in his favor. The inconvenience caused to the defendant shall be much more in case the injunction as prayed by the plaintiff is granted in his favor and therefore, the balance of convenience is in favor of defendant. Such an injunction as prayed by the plaintiff would rather lead to multiplicity of proceedings.
50. For the foregoing reasons the order dated 15th October, 2005 needs to be vacated and injunction application filed by the plaintiffs merits rejection and therefore, I.A. No. 8224/2005 filed by the plaintiffs is accordingly dismissed and IA No. 8893/2005 filed by the defendant is hereby allowed. The interim order dated 15th October, 2005 is vacated.
On the contrary, you may not agree with my view point, does not mean that I should follow your wrong notions. In order clear the mist caused by you because of the citation of the above decision the following decisions extract amply clarify the view points I projected and I will not enter into further wits in reply to your comments:
i) The declaration of termination of service was illegal was made and further damages were awarded:
Kolkata High Court (Appellete Side)
Beer Bikram Kumar Singh vs Datex-Ohmeda (India) Pvt. Ltd on 21 March, 2014
Once the declaration was made that, inter alia, the termination of service was wrongful by the judgment and decree dated 21st June, 2007, the stigma stood removed. Till before that time we accept that such stigma remained attached to the plaintiff giving rise to circumstances which prevented him from obtaining employment elsewhere. It follows that damages must be assessed as can be awarded to the plaintiff following the wrongful termination of his service on 20th February, 2003 till the date of the impugned judgment and decree being 21st June, 2007. In assessing such damages we can do the same from the pre-estimate by particulars given in paragraph 49 of the plaint but only those which have been duly proved and appear to us to be reasonable. Those particulars that are unacceptable to us is because they relate to reimbursibles and the plaintiff not having worked did not incur any reimbursible expenses.
ii) Punjab-Haryana High Court
M/S Dsm India Pvt. Ltd vs Mr.Maanav Yashroy & Ors on 9 January, 2014
12. In this manner, the trial Court appears to have examined the matter in right perspective and dismissed the application under Order 7 Rule 11 CPC filed by petitioner defendant-company, by virtue of impugned order, which, in substance, is as under (Paras 10 and 11):-
"10. It is suit for declaration with consequential relief of damages. As per plaint, only which is relevant stage, the plaintiff has challenged the termination order issued by defendant company and thereby has sought the relief of declaring the impugned termination order as illegal. Along with this, the plaintiff has prayed for directions to the defendant company to comply with the contractual obligations prior to terminating the plaintiff. Consequently, the plaintiff has sought the relief of exemplary damages to be awarded to the plaintiff. The plaintiff has not prayed for reinstatement in the defendant company. Hence the question of enforcing the specific contract between the parties does not arise. The plaintiff is not enforcing the personal contract by getting directions to the defendant company to follow due process of law prior to terminate the plaintiff. It is a mixed question of law and fact as to whether the plaintiff company followed the proper procedure before terminating the plaintiff from his job and has to be proved by cogent evidence at the stage of evidence. This is not the stage for this matter to be looked in. As far as the contention raised by the counsel for applicant regarding personal contracts and not to enforce the same etc. is related then it is pertinent to mention here that any Arvind Kumar Sharma 2014.01.17 12:29 I attest to the accuracy and integrity of this document Chandigarh contract/agreement whether personal commercial or specific does not give power to any body to bye pass the due procedure of law as well as contractual obligations between the parties. Meaning thereby, if defendant has any power to exercise then it has to be exercised by following due process of law and if question of not following due process has been raised by the plaintiff then he has the right to prove the same at the stage of evidence.
11. Moreover, the plaintiff has sought the relief of exemplary damages in consequences of relief of declaration. Hence, the contention of applicant that the relief of declaration simpliciter is not maintainable, is of no consequence.
13. Meaning thereby, the trial Court has recorded the cogent grounds in this regard.
iii) No injunction was admissible in case of termination of service in private employment:
Delhi High Court
Ge Capital Transportation ... vs Shri Tarun Bhargava on 20 March, 2012
5… Also, even assuming the termination is not as per the contract, at best the entitlement will be to claim damages which naturally flow out of the breach i.e. of the illegal termination of contract
11. Therefore, looking at the matter from the point of view of the contract of personal service not being enforceable under Section 14(1)(b) of the Specific Relief Act, 1963, the contract being determinable in nature and hence cannot be enforced as per Section 14(1)(c) of the Specific Relief Act, 1963 or that injunction could not be granted to prevent breach of a contract which cannot be specifically enforced, the suit was clearly barred and not maintainable.
iv) Similarly, in another case, the High Court granted consolidated damages against illegal termination :
Delhi High Court
St Johns School & Anr vs Asha Bhan on 19 July, 2012
“The facts giving rise to filing of this appeal can be summarized as under:-
The respondent/plaintiff was employed as a Nursery/KG teacher with appellant No. 1 St. John‟s School, which is being run and managed by appellant No. 2 Delhi Mar Thoma Church Society. The services of the plaintiff/respondent were terminated with effect from 01.10.2001. The case of the plaintiff/respondent is that though her salary was Rs.7331/- per month, the appellants/defendants were wrongfully and illegally deducting a sum of Rs 2706/- per month from her salary and when she protested against such deduction, the defendants/appellants threatened to terminate her services. A sum of Rs 64,896/- was deducted from her salary in this manner, in about 24 months. This was also her case that on a strong protest by her in July-August, 2001, the defendants/appellants offered her a package of 05 month salary in case she submitted her resignation. They also threatened her to resign or else they would terminate her services, in case the offer was not accepted by her. According to the plaintiff/respondent, she refused to resign as a result of which she was not allowed to take classes with effect from 01.08.2001 and subsequently her services were terminated with effect from 01.10.2001. She accordingly claimed Rs 64,896/- being the amount wrongfully deducted from her services, Rs 21,993/- as arrears of salary, Rs 7,18,438/- on account of damages for illegal and wrongful termination of her services and Rs 50,000/- on account of damages for mental sufferings.
17. Thus, the plaintiff/respondent is entitled to recover the following amounts from the defendants/appellants:
(i) Rs.64,902/- being the amount wrongfully deducted from her salary
(ii) Rs.7,331/- towards arrears of salary for August, 2001.
(iii) Rs. 244/- towards salary of one day in September, 2001 and
(iv) Rs.3,50,000/- being the consolidated damages on account of wrongful termination of her services, thereby making a total of Rs.4,22,477/-.
The issues are decided accordingly.”
I think the point is beyond doubt now:
Regards
Sushil
From India, New Delhi
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Dear Sunil,
Please read point no. iii in your above post where you have stated that no injunction is possible in the case of termination in private employment. If you understand this, then why did you advise a civil case?
The only way of getting reinstated back to her job is through a Writ Petition while seeking damages, which is permissible under Article 21 without impairing the right of the petitioner to claim damages under ordinary law through Civil Courts.
Even if she doesn't want to go back to the job, with a Writ filed in court, she can always ensure that the company comes for an outside court settlement, thus ensuring a golden handshake.
A writ petition would be much faster than Civil Court cases, and hence, a Writ Case is the best option.
Coming to my case, which I have stated, the American Bank had asked for specific performance as per the terms and conditions of the employment contract entered between American Express Bank and Priyanka Puri, as per which damages were levied upon Priyanka Puri, but the same was not entertained, and only the return of confidential documents was advised by the court.
How you interpret precedents clearly indicates your lack of understanding of judgments in favor of the point you contest.
Regards,
Octavious
From India, Mumbai
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Please read point no. iii in your above post where you have stated that no injunction is possible in the case of termination in private employment. If you understand this, then why did you advise a civil case?
The only way of getting reinstated back to her job is through a Writ Petition while seeking damages, which is permissible under Article 21 without impairing the right of the petitioner to claim damages under ordinary law through Civil Courts.
Even if she doesn't want to go back to the job, with a Writ filed in court, she can always ensure that the company comes for an outside court settlement, thus ensuring a golden handshake.
A writ petition would be much faster than Civil Court cases, and hence, a Writ Case is the best option.
Coming to my case, which I have stated, the American Bank had asked for specific performance as per the terms and conditions of the employment contract entered between American Express Bank and Priyanka Puri, as per which damages were levied upon Priyanka Puri, but the same was not entertained, and only the return of confidential documents was advised by the court.
How you interpret precedents clearly indicates your lack of understanding of judgments in favor of the point you contest.
Regards,
Octavious
From India, Mumbai
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Dear Octavious,
One should not expose his misadventures to such an extent that people start having pity about one, regardless of the age at which he may have entered. Please read my earlier posts where I have never stated that injunction is permissible in private employment. I have emphasized that after a declaration that termination was wrongful on the grounds of resignation by coercion, and consequent damages are admissible in the case. Furthermore, a writ petition will not lie against a private company on the grounds of an alleged violation of Article 21 since it is settled law that violations under Article 21 are considered against the State due to the words "due process of law" used in it, as per the ADM Jabalpur case.
Additionally, your approach that by merely filing a writ, the company will come out for an outside court settlement, shows how ignorant you are about legal practice. If this were the case, every private employee would file a writ petition and try to obtain a settlement with the private company outside of court. Do you think the company's lawyer will not contest vigorously regarding its maintainability? Generally, the concepts of a writ are known to every lawyer and High Court, so the stage of issuing notice to a private company will not even arise, let alone entering into a settlement. You could not cite a single decision in which your approach has any strength. Please do not get into splits on this petty issue. So please reconsider your approach.
Regards,
Sushil
From India, New Delhi
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One should not expose his misadventures to such an extent that people start having pity about one, regardless of the age at which he may have entered. Please read my earlier posts where I have never stated that injunction is permissible in private employment. I have emphasized that after a declaration that termination was wrongful on the grounds of resignation by coercion, and consequent damages are admissible in the case. Furthermore, a writ petition will not lie against a private company on the grounds of an alleged violation of Article 21 since it is settled law that violations under Article 21 are considered against the State due to the words "due process of law" used in it, as per the ADM Jabalpur case.
Additionally, your approach that by merely filing a writ, the company will come out for an outside court settlement, shows how ignorant you are about legal practice. If this were the case, every private employee would file a writ petition and try to obtain a settlement with the private company outside of court. Do you think the company's lawyer will not contest vigorously regarding its maintainability? Generally, the concepts of a writ are known to every lawyer and High Court, so the stage of issuing notice to a private company will not even arise, let alone entering into a settlement. You could not cite a single decision in which your approach has any strength. Please do not get into splits on this petty issue. So please reconsider your approach.
Regards,
Sushil
From India, New Delhi
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Sushil/Octavious,
While some other members may be able to shed more light on this confusion about the applicable law, I would request both members to kindly avoid calling each other names or showing the other down. You are both right in sticking to what you believe is the correct approach, and it is perhaps an opportunity to learn something.
While I do not want to curtail the fervor and enthusiasm with which you two are debating, I would request both to maintain respect for the platform and each other.
Regards,
CHR
From India, Gurgaon
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While some other members may be able to shed more light on this confusion about the applicable law, I would request both members to kindly avoid calling each other names or showing the other down. You are both right in sticking to what you believe is the correct approach, and it is perhaps an opportunity to learn something.
While I do not want to curtail the fervor and enthusiasm with which you two are debating, I would request both to maintain respect for the platform and each other.
Regards,
CHR
From India, Gurgaon
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Dear Miss,
You have only 2 options:
1. Be quiet as you resigned.
2. Go for legal actions, but only if you have 2 proofs:
a. Birth certificate showing the birth of the newborn, which also proves that you were pregnant when you resigned.
b. Any proof showing that the resignation was taken forcefully. In this case, you may claim for the mental disturbance that occurred during the coercion to resign.
If you do not have such proof, my advice is to leave, as you already know the cost of justice, which is too heavy for us to pay.
Regards,
Ziad Hussain
From Pakistan, Islamabad
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You have only 2 options:
1. Be quiet as you resigned.
2. Go for legal actions, but only if you have 2 proofs:
a. Birth certificate showing the birth of the newborn, which also proves that you were pregnant when you resigned.
b. Any proof showing that the resignation was taken forcefully. In this case, you may claim for the mental disturbance that occurred during the coercion to resign.
If you do not have such proof, my advice is to leave, as you already know the cost of justice, which is too heavy for us to pay.
Regards,
Ziad Hussain
From Pakistan, Islamabad
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You can still approach the labour department. It is the employer who have to prove that they have not forced you to resign.
From India, Delhi
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From India, Delhi
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Dear Manushi48,
I agree with the number of members that nothing can be done. Thinking from your point of view:
a) You should get maternity paid leave of 90 days, as well as get 3 months' compensation from the company, which is in the process of closing down. This is the real issue.
My point of view:
a) The company has honored by paying more than the required compensation. How? The company is to give 3 months' salary in lieu of termination. Here it is resignation, not termination.
b) It is salary, not CTC (you have got CTC, which is normally higher than salary).
c) Does your resignation state the notice period and effective date? I hope it is not with immediate effect. Are you attending duties? These are some questions not replied to in your post.
d) Pregnancy is personal and has no legal bearing on the company. Manushiji, forget about this incident. Focus on your pregnancy and enjoy Motherhood.
Best wishes to you,
Vir Matta
From India, Jhansi
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I agree with the number of members that nothing can be done. Thinking from your point of view:
a) You should get maternity paid leave of 90 days, as well as get 3 months' compensation from the company, which is in the process of closing down. This is the real issue.
My point of view:
a) The company has honored by paying more than the required compensation. How? The company is to give 3 months' salary in lieu of termination. Here it is resignation, not termination.
b) It is salary, not CTC (you have got CTC, which is normally higher than salary).
c) Does your resignation state the notice period and effective date? I hope it is not with immediate effect. Are you attending duties? These are some questions not replied to in your post.
d) Pregnancy is personal and has no legal bearing on the company. Manushiji, forget about this incident. Focus on your pregnancy and enjoy Motherhood.
Best wishes to you,
Vir Matta
From India, Jhansi
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Legal Clarification on Revocation of Resignation & Severance Dues.pdf
Resignation Letter.jpg