Dear Octavious,
Pl refer to one of the latest decision of Babu lal vs Guruharkishan school, decided by Delhi High Court on 1.5.2013 on contention of forced resignation of petitioner in writ jurisdiction. The petitioner was denied justice in writ jurisdiction and asked to seek relief before civil court. Kindly revisit your approach of thought so that an aggrieved may really get justice and not become a rolling stone at the hands of people.
Regards

From India, New Delhi
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
Dear Octavious,
Art.21 violations are considered against State or its agencies but not against private companies, pl. Moreover, the present is a case of alleged forceful resignation.The above judgment is not applicable here.

From India, New Delhi
Dear Sunil
I appreciate your resilience, but you should know when to give up.
The position of Article 21 you have defined was before 1950's, things have come long way since then.
Anyways, I have made my point, I have nothing further to explain and add , hence would not be participating further in this discussion.
Regards
Octavious

From India, Mumbai
Dear Octavious,
When you have insisted on a point, it is essential it should be thrashed out. Now you said about the position of article that I projected was of pre 1950. But refer to constitution Bench decision of Supreme Court in PD Shamdasni vs Central Bank of India followed in famous ADM Jabalpur case of 1976 and other subsequent cases wherein violations under article 21 are held to be considered against the State. Further in Bandhua Multi Morcha case, the has been developed with regard to PIL and that too for sanctions against State to implement various labor laws. Present case is of individual only and that too pertaining to her alleged forced resignation.
Regards
Sushil

From India, New Delhi
Dear All
One of my lady employee on leave 50 PL balance from 10 JAN 15 the expected date of delivery is around May-15.
she wants leave for Jan-July 15 .
Please suggest how to give her benefit and what are the components of salary to be paid during maternity leave.
Salary heads are Basic +HRA+TA+Others .
I told her to take leave from 15 March to 31 May -15 but she said that the doctor advised her bed rest .
seniors your voluble suggestion please.Urgent pl.

From India, Mumbai
She can take maternity leave 6 weeks prior to expected date of delivery. If she wants more leave prior to child birth she can take PL provided the employer approves it. Since she already has 50 PL to her credit she can go for that.

Salary for during the maternity leave days should be the same salary paid when she attends duty. However, the reimbursement components of salary like, fuel, telephone, medical etc which are paid subject to production of bills shall not be paid.

The government is going to amend the Maternity Benefit Act and with the amendment the 12 weeks leave will become 24 weeks leave. There is no proposal of changing the qualifying service which may remain the same, ie, 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 child birth. Above all, there would be a few months leave either with pay (in case she has PL) or without pay which should be treated as approved leave for the purposes of Payment of Gratuity Act and other Acts wherein continuous service has been referred like that of Industrial Disputes Act in connection with lay off and retrenchment !.

Madhu.T.K

From India, Kannur
Dear Sushil

I am really concerned 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 compelled to go against my earlier statement and participate in the discussion to set things right.

You had suggested that the remedy is available for the lady in Civil Court, what remedy is available to this lady in civil court other than injunction, which in current scenario is not applicable to her.

The jurisdiction of Article 21 has been clearly defined in various cases and this principles are applicable in similar situation where similar fact of law has been raised.

Article 21 ensures that it becomes responsibility of state to ensure that every citizens right to life is protected and right to life also includes right to work and earn a living legitimately, which includes termination of job only through and after a due process prescribed under law.

I suggest you to in depth study about Writ and its jurisdiction and civil law , instead of trying to challenge a well established position in law on Article 21 by legal luminaries and stalwarts.

Regards

Octavious

From India, Mumbai
Dear Friends,
I am not a legal expert so I cannot contribute beyond certain level in this thread. But reading the interactions, I forced myself to click on "Remove post" on certain posts with great discontent. I am very small person in front out you to give you some advice but still I would like to mention here that:
1. We are all learners here including every one;
2. We all are responsible for our own learning;
3. Learning is an interactive process.
4. We should keep our conduct professional and polite as stated by the site administrator.

From India, Mumbai
Dear Korgaonkar

Dont be disheartened. This kind of exchange between two people are normal.

I am aware I have been very sharp with my words and have been so, to force Sunil think in 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. Example :- Priyanka Puri vs American Express Case.

Sunil has been was not all unruly during our discussion, it is me who gave him chance and reason to be unruly. Sunil has not rubbed me in the wrong side in any way during this discussion, but if he continues similar discussion before someone else, with same passion and void of in depth study he will for sure rub people in the wrong direction and will be left with only option of licking his wound.

I understood that he is very passionate and highly opinionated which is really very good for a upcoming professional, but compromising the learning curve is not something any professional should ever practice, but that is exactly what Sunil is doing.

I from the discussion understood that he is a up coming professional, and would be junior to me from a professional angle, and hence I spend time on explaining things to him, but unfortunately I couldn't drive a point across to him, and hence had to resort to other methods of driving home a point.

For now you relax, because this post in last two days has become the most read post because me and Sunil. There is always a silver lining on a dark cloud, always........

Regards

Octavious

From India, Mumbai

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