Dear Dhingra Sir,
Forget all the cases. Will the constitution of India and contract law enacted by the parliament hold superior position to the circulars, guidelines formed by by some persons or companies (may be due to ignorance or due to ulterior motives etc)?
Central Government Act
Article 19(1)(g) in The Constitution Of India 1949
(g) to practise any profession, or to carry on any occupation, trade or business
Central Government Act
Article 21 in The Constitution Of India 1949
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
Central Government Act
Section 27 in The Indian Contract Act, 1872
27. Agreement in restraint of trade, void.—Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. —Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void." Exception 1.—Saving of agreement not to carry on business of which goodwill is sold.—One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business. 16 [***]
Section 73 in The Indian Contract Act, 1872
73. Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. —When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it." Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
I have published the writ petition I myself prepared against my first PSU who instigated my second PSU to take disciplinary action against me and caused my dismissal. I am demanding reinstatement due to non payment of notice period salary and causing my dismissal. Pl. visit tiny.cc/sailwp when you are free. I have provided links to more than 40 cases where it has been held that an employer has no say on the employee after the termination of employment.
Just because an employee has counter signed an appointment order or given an undertaking it does not become enforceable. It has to be reasonable and justifiable (like protection of trade secret, protection from competition etc).
From India, Salem
2Forget all the cases. Will the constitution of India and contract law enacted by the parliament hold superior position to the circulars, guidelines formed by by some persons or companies (may be due to ignorance or due to ulterior motives etc)?
Central Government Act
Article 19(1)(g) in The Constitution Of India 1949
(g) to practise any profession, or to carry on any occupation, trade or business
Central Government Act
Article 21 in The Constitution Of India 1949
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
Central Government Act
Section 27 in The Indian Contract Act, 1872
27. Agreement in restraint of trade, void.—Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. —Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void." Exception 1.—Saving of agreement not to carry on business of which goodwill is sold.—One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business. 16 [***]
Section 73 in The Indian Contract Act, 1872
73. Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. —When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it." Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
I have published the writ petition I myself prepared against my first PSU who instigated my second PSU to take disciplinary action against me and caused my dismissal. I am demanding reinstatement due to non payment of notice period salary and causing my dismissal. Pl. visit tiny.cc/sailwp when you are free. I have provided links to more than 40 cases where it has been held that an employer has no say on the employee after the termination of employment.
Just because an employee has counter signed an appointment order or given an undertaking it does not become enforceable. It has to be reasonable and justifiable (like protection of trade secret, protection from competition etc).
From India, Salem
Mr. Sas,
You are free to assume anything. Nobody can prohibit you from doing so.
If you feel that the agreement was violative of any constitutional provision, why not you file a case in the competent court of law to get judgment to get your perception confirmed? Also, if the employee is aggrieved with disciplinary action in spite deriving undue benefit for no work for his previous employer, you may take up his case with the CAT/ competent court to get your opinion confirmed. But if you insist on Constitutional provisions and sec. 27 of the Contract Act, you should also not forget that besides departmental disciplinary action, he can also be proceeded against under the provisions of CrPC and IPC to derive undue profit for no service on his part.
Rather, you or the said employee should be thankful to the departmental authorities that they preferred to take only disciplinary action instead of filing an FIR with the police.
To be frank, if their is any truth in this case (not a hypthetical case) and also had I been at the helm of affairs, I would definitely have taken action to put such a person behind the bar under the provisions of law. In that case, I would have liked to see how the Constitution of India or your interpretation of sec.27 of the Contract Act would have come to the rescue.
From India, Delhi
You are free to assume anything. Nobody can prohibit you from doing so.
If you feel that the agreement was violative of any constitutional provision, why not you file a case in the competent court of law to get judgment to get your perception confirmed? Also, if the employee is aggrieved with disciplinary action in spite deriving undue benefit for no work for his previous employer, you may take up his case with the CAT/ competent court to get your opinion confirmed. But if you insist on Constitutional provisions and sec. 27 of the Contract Act, you should also not forget that besides departmental disciplinary action, he can also be proceeded against under the provisions of CrPC and IPC to derive undue profit for no service on his part.
Rather, you or the said employee should be thankful to the departmental authorities that they preferred to take only disciplinary action instead of filing an FIR with the police.
To be frank, if their is any truth in this case (not a hypthetical case) and also had I been at the helm of affairs, I would definitely have taken action to put such a person behind the bar under the provisions of law. In that case, I would have liked to see how the Constitution of India or your interpretation of sec.27 of the Contract Act would have come to the rescue.
From India, Delhi
Mr. PS DHINGRA,
You gave your views (which had only emotional content and not any legal basis) voluntarily and when your views are found to have no legal basis, you have started making personal accusations against me. I have already proved that I have done noting wrong in the Karnataka High court, arguing myself. If you have an open mind, please read the judgement in the link below. You may think you know more than the High Court Judge. Nobody stops you.
http://judgmenthck.kar.nic.in/judgme...23-06-2014.pdf
Lastly, I have started this discussion and I am the owner of this thread. You might have held a post of "helm of affairs", but, your views need not be always right. If I had committed a fraud, embezzlement etc there was nothing stopping my employer or previous employer from filing a FIR. The maximum that can be done against me was a civil suit for recovery which will not even be admitted as it is well beyond the limitation period as per law (which was also confirmed by the Karnataka High Court).
From India, Salem
You gave your views (which had only emotional content and not any legal basis) voluntarily and when your views are found to have no legal basis, you have started making personal accusations against me. I have already proved that I have done noting wrong in the Karnataka High court, arguing myself. If you have an open mind, please read the judgement in the link below. You may think you know more than the High Court Judge. Nobody stops you.
http://judgmenthck.kar.nic.in/judgme...23-06-2014.pdf
Lastly, I have started this discussion and I am the owner of this thread. You might have held a post of "helm of affairs", but, your views need not be always right. If I had committed a fraud, embezzlement etc there was nothing stopping my employer or previous employer from filing a FIR. The maximum that can be done against me was a civil suit for recovery which will not even be admitted as it is well beyond the limitation period as per law (which was also confirmed by the Karnataka High Court).
From India, Salem
Dear SAS1234
Here the members are doing service for the query on voluntary basis. This site is mainly for those who are seeking guidance only and those whoever guiding are not getting any benefit except gaining some knowledge by way of sharing.
Let us first understand one thing, whoever asking for some guidance only raising the question. Whoever interested and able to guide are giving their reply. Here no one is compelling you to follow the advices given by our members.
Further the person raising the query is never asked to follow the same and they have the right to follow and act as their own. If you are not interested and not willing to accept the reply it is upto you and no one can compel anyone to follow or not to follow. The advise seekers who are in completely confused and unable to proceed further will get some idea and can decide how to proceed further after getting the reply from our learned members.
If you feel the reply given by our members are not acceptable, then you can leave just like that and no need to have any argument.
Wish you all the best and you can give the details of further course of action on this issue, so that it can be learning for our members and it will be useful for those whoever facing the similar situation.
From India, Kumbakonam
Here the members are doing service for the query on voluntary basis. This site is mainly for those who are seeking guidance only and those whoever guiding are not getting any benefit except gaining some knowledge by way of sharing.
Let us first understand one thing, whoever asking for some guidance only raising the question. Whoever interested and able to guide are giving their reply. Here no one is compelling you to follow the advices given by our members.
Further the person raising the query is never asked to follow the same and they have the right to follow and act as their own. If you are not interested and not willing to accept the reply it is upto you and no one can compel anyone to follow or not to follow. The advise seekers who are in completely confused and unable to proceed further will get some idea and can decide how to proceed further after getting the reply from our learned members.
If you feel the reply given by our members are not acceptable, then you can leave just like that and no need to have any argument.
Wish you all the best and you can give the details of further course of action on this issue, so that it can be learning for our members and it will be useful for those whoever facing the similar situation.
From India, Kumbakonam
https://indiankanoon.org/doc/709776/
Supreme Court of India
Olga Tellis & Ors vs Bombay Municipal Corporation & ... on 10 July, 1985
Equivalent citations: 1986 AIR 180, 1985 SCR Supl. (2) 51
7 judge constitutional bench held
"No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits."
Article 19(1)(g) in The Constitution Of India 1949
(g) to practise any profession, or to carry on any occupation, trade or business
To work in any company is a fundamental right as per 19(1)(g). An employee can not be denied the fundamental right by the undertaking forcefully obtained by PSU1 on payment of some money on the pretext of VRS or ex-gratia.
One more similar undertaking by the Govt from an employee was quashed by the court :
https://www.legalcrystal.com/case/53...s-state-orissa
"Dealing with an undertaking obtained from the concerned employee that he would not claim salary of the higher post or any other benefit was held to be illegal by the Apex Court in Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma 1998 SCC (L & S) 1273. In paragraph 8 of the aforesaid decision, it was held thus:
8. Learned Counsel for the Appellant attempted to contend that when the Respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the Appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. "
From India, Salem
Supreme Court of India
Olga Tellis & Ors vs Bombay Municipal Corporation & ... on 10 July, 1985
Equivalent citations: 1986 AIR 180, 1985 SCR Supl. (2) 51
7 judge constitutional bench held
"No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits."
Article 19(1)(g) in The Constitution Of India 1949
(g) to practise any profession, or to carry on any occupation, trade or business
To work in any company is a fundamental right as per 19(1)(g). An employee can not be denied the fundamental right by the undertaking forcefully obtained by PSU1 on payment of some money on the pretext of VRS or ex-gratia.
One more similar undertaking by the Govt from an employee was quashed by the court :
https://www.legalcrystal.com/case/53...s-state-orissa
"Dealing with an undertaking obtained from the concerned employee that he would not claim salary of the higher post or any other benefit was held to be illegal by the Apex Court in Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma 1998 SCC (L & S) 1273. In paragraph 8 of the aforesaid decision, it was held thus:
8. Learned Counsel for the Appellant attempted to contend that when the Respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the Appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. "
From India, Salem
I filed an Original Application in Central Administrative Tribunal, Madras bench asking to quash the claim of PSU-1 on me (based on my undertaking to refund ex-gratia amount on joining any other PSU).
The CAT instead of issuing an arrest warrant on me as suggested by a learned member of this group, has stayed the claim of the PSU-1
https://drive.google.com/open?id=0Bx...G0xQTNlZ1FwOFk
Hope to get justice some day.
From India, Salem
The CAT instead of issuing an arrest warrant on me as suggested by a learned member of this group, has stayed the claim of the PSU-1
https://drive.google.com/open?id=0Bx...G0xQTNlZ1FwOFk
Hope to get justice some day.
From India, Salem
Mr. SAS,
Why do you feel that anybody should reply your post when you serve legal notice to the contributors, who try to make you aware of the legal implications of a case?
Secondly, why do you think that you could have been arrested if your PSU has not filed any criminal case against you? I really wonder on your thought, if you consider any reply to your post at CiteHR as an FIR against you.
Thirdly, do you believe that the CAT has the power to order the police for arrest of anyone?
Fourthly, do you think if stay is granted that can be treated as quashing of the claim?
However, nobody would have any objection if you want to live with your own perceptions.
Now, if you feel that a legal notice should be served to me for replying your post, you may feel free to do that also.
From India, Delhi
Why do you feel that anybody should reply your post when you serve legal notice to the contributors, who try to make you aware of the legal implications of a case?
Secondly, why do you think that you could have been arrested if your PSU has not filed any criminal case against you? I really wonder on your thought, if you consider any reply to your post at CiteHR as an FIR against you.
Thirdly, do you believe that the CAT has the power to order the police for arrest of anyone?
Fourthly, do you think if stay is granted that can be treated as quashing of the claim?
However, nobody would have any objection if you want to live with your own perceptions.
Now, if you feel that a legal notice should be served to me for replying your post, you may feel free to do that also.
From India, Delhi
Hydrabad division bench has squarely dealt with such an undertaking signed by a VRS Optee
https://www.legalcrystal.com/case/43...nt-corporation
77. It should be noted that the impugned condition only prohibits the petitioners from taking re-employment in Government Departments/Public Sector Undertakings. They are not precluded from taking employment in private organizations or compete by way of direct recruitment to public offices. The apprehension of the petitioners that if they give an undertaking in terms of Clause 8(8) of G.O. Ms. No. 16, dated 22-3-2001, they would be barred from seeking employment in any organization, is misplaced inasmuch as even if they give such an undertaking, they would not waive their fundamental right to equality enshrined under Article 14 and the other fundamental rights guaranteed under Part III of the Constitution of India. If at any future point of time, the petitioners apply for employment and their cases for employment is rejected on the ground of they having undertook not to claim re-employment, are not entitled to claim employment, then they would be at liberty to assail the same.
------------------------------------------------
I cited more than 40 cases where the courts held that an employer can not enforce any condition after termination of an employee by whatever name it is called like bond, undertaking, confidentiality, non-compete, training bond etc. Any one can read and understand the legality or otherwise of such an undertaking, if he has an open mind.
https://docs.google.com/document/d/1...2BZx8vQEU/edit
Stay is rarely given by CAT, unless the CAT is convinced that a gross illegality has been committed.
When the claim is quashed, an appeal can be filed. Does it make the quashing not correct? Once a stay is granted, the concerned party has to get it vacated. Till that time, the claim is null and void.
Let us talk on legal merits by citing judgments, not by what one feels. No offence meant.
From India, Salem
https://www.legalcrystal.com/case/43...nt-corporation
77. It should be noted that the impugned condition only prohibits the petitioners from taking re-employment in Government Departments/Public Sector Undertakings. They are not precluded from taking employment in private organizations or compete by way of direct recruitment to public offices. The apprehension of the petitioners that if they give an undertaking in terms of Clause 8(8) of G.O. Ms. No. 16, dated 22-3-2001, they would be barred from seeking employment in any organization, is misplaced inasmuch as even if they give such an undertaking, they would not waive their fundamental right to equality enshrined under Article 14 and the other fundamental rights guaranteed under Part III of the Constitution of India. If at any future point of time, the petitioners apply for employment and their cases for employment is rejected on the ground of they having undertook not to claim re-employment, are not entitled to claim employment, then they would be at liberty to assail the same.
------------------------------------------------
I cited more than 40 cases where the courts held that an employer can not enforce any condition after termination of an employee by whatever name it is called like bond, undertaking, confidentiality, non-compete, training bond etc. Any one can read and understand the legality or otherwise of such an undertaking, if he has an open mind.
https://docs.google.com/document/d/1...2BZx8vQEU/edit
Stay is rarely given by CAT, unless the CAT is convinced that a gross illegality has been committed.
When the claim is quashed, an appeal can be filed. Does it make the quashing not correct? Once a stay is granted, the concerned party has to get it vacated. Till that time, the claim is null and void.
Let us talk on legal merits by citing judgments, not by what one feels. No offence meant.
From India, Salem
Mr. SAS,
Your post has nothing to do with your previous post of 3 November. The sense of making your previous post was something else upon which I raised some pertinent questions. You have avoided to give reply to such questions.
Is there any specific reason that you avoided reply to my questions? I am not concerned by the rarity of stay by the CAT on any matter or how many cases you could quote in your case. I am simply concerned about your thought on your post of 3 November upon which I asked you about the powers of CAT to order for arrest or whether any post at citehr can be taken as an FIR for some criminal offense.
Would you kindly reply the questions raised by me?
From India, Delhi
Your post has nothing to do with your previous post of 3 November. The sense of making your previous post was something else upon which I raised some pertinent questions. You have avoided to give reply to such questions.
Is there any specific reason that you avoided reply to my questions? I am not concerned by the rarity of stay by the CAT on any matter or how many cases you could quote in your case. I am simply concerned about your thought on your post of 3 November upon which I asked you about the powers of CAT to order for arrest or whether any post at citehr can be taken as an FIR for some criminal offense.
Would you kindly reply the questions raised by me?
From India, Delhi
Pl. find my views on the points :
Q : Why do you feel that anybody should reply your post when you serve legal notice to the contributors, who try to make you aware of the legal implications of a case?
Ans : Giving legal point and advice is always appreciated. Throwing personal accusations like "fraud, cheating, misappropriation, you must be arrested etc" are not in good taste from a senior member
Q: Secondly, why do you think that you could have been arrested if your PSU has not filed any criminal case against you? I really wonder on your thought, if you consider any reply to your post at CiteHR as an FIR against you.
Ans : The worst that can be done against me was a civil suit for recovery. The arrest and putting behind bars was suggested by you and criminal offence was also suggested by you.
Q: Thirdly, do you believe that the CAT has the power to order the police for arrest of anyone?
Ans : I am not a judge of the CAT and I can not answer this question. What I can say is that CAT could have refused to hear or could have refrained from giving a stay.
Q: Fourthly, do you think if stay is granted that can be treated as quashing of the claim?
Ans : Stay is not granted just like that. Only if there is a prima facie illegality committed, stay is granted. Moreover, the claim (of PSU-1) has been already quashed by the Karnataka High Court.
Q: I am not concerned by the rarity of stay by the CAT on any matter or how many cases you could quote in your case.
Ans : Shows that you are not concerned about legality and merit and concerned only about what you feel right.
From India, Salem
Q : Why do you feel that anybody should reply your post when you serve legal notice to the contributors, who try to make you aware of the legal implications of a case?
Ans : Giving legal point and advice is always appreciated. Throwing personal accusations like "fraud, cheating, misappropriation, you must be arrested etc" are not in good taste from a senior member
Q: Secondly, why do you think that you could have been arrested if your PSU has not filed any criminal case against you? I really wonder on your thought, if you consider any reply to your post at CiteHR as an FIR against you.
Ans : The worst that can be done against me was a civil suit for recovery. The arrest and putting behind bars was suggested by you and criminal offence was also suggested by you.
Q: Thirdly, do you believe that the CAT has the power to order the police for arrest of anyone?
Ans : I am not a judge of the CAT and I can not answer this question. What I can say is that CAT could have refused to hear or could have refrained from giving a stay.
Q: Fourthly, do you think if stay is granted that can be treated as quashing of the claim?
Ans : Stay is not granted just like that. Only if there is a prima facie illegality committed, stay is granted. Moreover, the claim (of PSU-1) has been already quashed by the Karnataka High Court.
Q: I am not concerned by the rarity of stay by the CAT on any matter or how many cases you could quote in your case.
Ans : Shows that you are not concerned about legality and merit and concerned only about what you feel right.
From India, Salem
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