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#Anonymous

An employee took VRS (Voluntary Retirment) from a PSU in 2002. He worked in private for 5 years. He saw an advertisement from a PSU in which there was no bar on VRS optees. He applied mentioning VRS in resume etc and got selected and joined another PSU in in 2007. The first PSU came to know about it and demanded refund of ex-gratia as per the application form he signed for VRS in 2002 in which it was pre-printed "I will not be allowed to join Govt/PSU and if I do, I will have to refund the ex-gratia received".

Now, the questions are

1.Whether such a condition from a PSU is valid in view of section 27 of contract act (restraint of trade is not valid)?

2.Whether the refund can be claimed as per contract act section 73 (no loss suffered by first PSU due to breach of contract)?

3.Whether refund can be enforced by the second PSU?

4.Whether disciplinary action can be initiated against the employee by the second PSU? There is no rule available to charge. The rule is clear "dishonesty against the company" is misconduct
19th March 2016 From India, Salem
Dear Annonymous,

You cannot mix-up the contract act conditions with the main service and gratuity act conditions. It is not a case of contract act, rather a case of termination of services an some extraordinary act of kindness, other than the usual conditions of termination from service by the employer or the employee by virtue of his resignation due to which he could get ex-gratia amount from his employer PSU, who allowed him to retire on vrs, when the usual retirement conditions were not filfilled, except on resignation. Any kind of ex gratia is not permissible for termination on resignation. So, the breached the specific terms of vrs on account of which the ex gratia was made to him as an act of kindness by the organisation, not as an entitlement of the employee or under any section of the service contract act. The question is not whether there was any loss to the company or not. But the element of breach of faith and trust was there on the part of the employee due to his doubtful integrity to cheat the employer for which he is liable for disciplinary action, besides recovery of the ex gratia amount he claimed by false declaration just to join another psu to extact undue and illegal benefits from the other Government organisation.

So, (1) the condition of the psu was quite valid; (2) refund necessarily becomes due to be recovered from the employee; (3) refund can be enforced by the present employer to be remitted to the last employer; and (4) the 2nd psu can initiate disciplinary action against the employee on his unbecoming of the employee of the psu by hiding the information/facts of the case that he claimed the ex gratia on the condition that he would not join any other Govt/psu in a bid to derive undue benefit of his past service. In fact the employee proved to be a dishonest and unreliable person even for the present psu.
19th March 2016 From India, Delhi
#Anonymous
Dear Sir,
Thanks for your opinion. I feel it is emotional not legal. I (as well as the high court) feel that there is no possibility or justification for such a claim or disciplinary action. Pl. go through if you get the time.
http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/4520/1/WP27374-13-23-06-2014.pdf
21st March 2016 From India, Salem
1. He clearly mentioned in his resume about the his first govt job and VRS.
2. How 2nd psu can initiate disciplinary action against the employee on his unbecoming of the employee of the psu by hiding the information/facts of the case that he claimed the ex gratia on the condition that he would not join any other Govt/psu in a bid to derive undue benefit of his past service. In fact the employee proved to be a dishonest and unreliable person even for the present psu.????
21st March 2016 From India, Hyderabad
#Anonymous
Dear Sir,
It is not an extra ordinary or act of kindness. They paid the ex-gratia to avoid paying future salary. They gained a lot by the person leaving the company and want the ex-gratia also back. Where is the justification in it? They have not contributed in the person getting the job in the second PSU.
Many courts, including the SC have held that such a condition is not valid. Hydrabad div bench has held that VRS person can join another PSU in open competition and it is his fundamental right.
About honesty, the person never did the fact in resume. The second PSU had formed no policy. How can they charge a person for it? If they had advertised about the condition or if the person had not disclosed it, then he can be charged. Otherwise how can he be charged?
21st March 2016 From India, Salem
Good Learning Curve for us/.. keep sharing post like this with closures..
21st March 2016 From India, Hyderabad
Mr. Anonymous,

I hope you very well understand that reading between the lines can't bring perfection in knowledge. Had you read the Government/ PSU Conduct & Disciplinary Rules, you would not have stated that my opinion was emotional, not legal. Rules of Government/ PSUs are different than the CDA Rules of private companies. Whenever I say something about Government organisations or their PSUs, I don't try to make an admixture of Government Rules, private companies’ rules or form opinion merely with reference to the court judgments, ignoring the relevant rules, circumstances and the nature of the case. Any court judgment is case specific depending upon the characteristics, nature and circumstances of the case and does not have universal application on all cases of all the organisation with different nature, characteristics and circumstances of the case. In the specific case that you referred, you have perhaps not noticed that the main challenge was with reference to the competence of the authority, who initiated the disciplinary proceedings, not the organisation, which initiated the proceedings. Government/ PSU Rules very clearly lay down that the employee can be proceeded against on account of any offence related to his past service even in another Government/ PSU organisation. The delegated competent authority in current employment according to the status of the employee acts as the disciplinary authority and decides the case, not the previous employer.

So, my advice to you is better re-read the judgment with specific reference to rules and delegations applicable in th Government/PSU orgnisations. Any PSU, may that works as a company, can not deviate from the Government rules and regulations, besides following statutory rules meant for the registered limited companies.
21st March 2016 From India, Delhi
Dear Srinivas,

Probably you tried to something else other than what you could mention. In the first part of your question you seemed to have questioned, "how 2nd psu can initiate disciplinary action against the employee on his unbecoming of the employee of the psu by hiding the information/facts of the case that he claimed the ex gratia on the condition that he would not join any other Govt/psu in a bid to derive undue benefit of his past service, while in the 2nd part of the same para you have stated, "In fact the employee proved to be a dishonest and unreliable person even for the present psu.???? So, both the parts of the 2nd para gives the sense of contradiction to each other. I hope I have clarified your point in my previosu post in reply to the supplementary post of the querist, as to how 2nd PSU can initiate disciplinary action against the employee.

Secondly, mere mentioned in his resume about the his first govt job and VRS does not absolve him of his irregularity of falsely giving declaration that he would not join any Govet./PSY after VRS. Government Rule, being of statutory nature are sacrosanct to be followed scrupulously by the employees of the Govt/ PSUs.
21st March 2016 From India, Delhi
Dear Anonymous,
Your 2nd supplementary post is merely an assumption or wishful thinking. You could better have checked with the legal meaning of ex-gratia before treating that, "not an extra ordinary or act of kindness." Undue benefit is not allowed legally, but only on account of an extra ordinary act of kindness in deferment of the regular service rules.
21st March 2016 From India, Delhi
#Anonymous
Dear Sir,

I would like to share the legal position with respect to the condition that "I will not be allowed to join another PSU. If I wish to join, I will refund the ex-gratia"

The above condition violates the Contract act section 27 and 73.

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.

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. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

Kerala High Court – State of Kerala Vs United Shippers and Dredgers Ltd, 1982KLJ430, due to breach of contract, the government did not suffer any legal injury or loss, so no compensation is payable as per contract act. Even if it is assumed that the person has breached the contract, the previous PSU has not suffered any “legal injury” or loss (but gained enormously). So, their claim is invalid.

“7...If the breach has not resulted in any harm, loss or damage to the other party, the question of recompensating him or restoring to him something he has lost would not arise.

8.....section 75 would necessarily indicate that the party who complains of a breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract....If in any case the breach has not resulted in or caused any loss or damage to a party, he cannot claim compensation”

Contract act section 27

Gauhati High Court – Oil India Ltd Vs Dilip Kumar Goswami, (2000)IILLJ415 Gau, No employer can restrict future job of an ex- employee.

“The employer cannot prescribe any term and condition in order to restrict future avocation of an employee after retirement. The bar for appointment after retirement may suit the employment policy of the Public Sector Undertakings and they may by way of policy decide not to appoint any retired employee of any other Public Sector Undertakings.

13. The clarification given by the Department of Public Enterprises in Column-5 shows that the Management of Public Enterprises have been asked to exercise its own managerial discretion and prudence while disposing of the cases of voluntary retirement. The clarification further requires the Management to invoke the powers of office memorandum dated December 14, 1982, January 25, 1998 and June 23, 1998 (sic) issued by Department of Public Enterprises if they find that an employee seeking voluntary retirement has opted for a job in any other Public Sector Undertaking. This condition also appears to be contrary to the provisions of Section 27 of the Indian Contract Act. An employee going on voluntary retirement and not taking any job in any Public Sector Undertaking will be entitled to full benefits under the Voluntary Retirement Scheme, but the said benefits will be restricted to certain amounts only if such employee takes fresh employment after retirement. The clarification given to this effect cannot be said to be in keeping with the spirit of the provisions of Section 27 of the Indian Contract Act. The Company while disposing of a request for voluntary retirement cannot discriminate in respect of benefits to which an employee is entitled to on such retirement on consideration that the employee concerned was going to take over a job in some other company. A bare reading of the guideline/circular shows that this was issued without any authority of law and against the basic principles behind 'voluntary retirement'.”

Hydrabad Div Bench – S.Rami Reddy Vs Vice-Chairman and Managing Director, Andra Pradesh State Irrigation Development Corporation Limited, 2003(4)ALD609. There is no ban on VRS optees to join any other PSU in open competition

“31. According to the learned counsel, Clause 8 of G.O. Ms. No. 16, dated 22-3-2001, which requires the identified employee to give an undertaking to the effect that he would not seek re-employment in other Government undertakings, is arbitrary and illegal for it violates the provisions of Articles 16 and 21 of the Constitution of India, and in support of this submission, he placed reliance on the judgement of the Gauhati High Court reported in Oil India Ltd. v. Dilip Kumar Goswami, 1999 (7) SLR 494.

76. The effect of the other contention advanced by the learned counsel for the petitioners that the condition in the impugned notice insofar as it mandates the identified employee who opts for VRS to give an undertaking that he shall not be eligible for re-employment in any Government Departments and Public Sector Undertakings, which is in consonance with sub-clause (8) of Clause 8 of G.O. Ms. No. 16, dated 22-3-2001, is arbitrary inasmuch as it takes away their right to livelihood enshrined under Article 21 of the Constitution of India, is also liable to be rejected, inasmuch, the learned single Judge of this Court, having considered this contention, in the above judgement, held thus: In the considered view of this Court, Clause 8(8) of G.O. Ms. No. 16, dated 22-3-2001 suffers from no infirmity. It does not deprive persons, who have opted for Voluntary Retirement Scheme from competing by way of direct recruitment to any Public Office.

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.”

Supreme court – Gouri Shankar Ghosh Hazara Vs Hindustan Copper, 8-5-2001, A VRS optee can join another PSU, he will be eligible for all VRS benefits

“It is clear that there was as such no embargo on an employee of a public sector undertaking being employed by another public sector undertaking”

Gujarat High Court – Lalbhai Dalpatbhai & Co Vs Chittaranjan Chandulal Pandya, AIR 1996 Guj 189. Restriction on employee after termination of employment is not valid. Employee does not have any bargaining power and has to sign on dotted line.

“9....If it is not going to benefit ”the employer in any legitimate manner, the court would not injunct the employee from exercising his skill, training and knowledge merely because the employee has agreed to it”

Gujarat High Court – Sandhya Organic Chemicals P Ltd Vs United Phosphorous Ltd, AIR 1997 Guj 177. as per contract act, service covenant beyond service period is not valid.

“16....The supreme court has also ruled that under section 27 of the contract act, a service covenant beyond the termination of the service is void”

Supreme court – Superintendence Company of India Vs Krishnan Murgai, AIR 1980 SC 1717. Post service conditions are not valid. Even partial condition is not valid. Inequality of bargaining power with employees. Harsh and oppressive conditions.

“29.A contract, which has for its object a restraint of trade, is prima facie void....whether the restraint was general or partial, unqualified or qualified, if it was in the nature of a restraint of trade, it was void.

32.....If the agreement puts a restraint even though partial, it was void and therefore, the contract must be treated as one which can not be enforced.

53....Not a Indian Decision has been brought to our notice where an injunction has been granted against an employee after the termination of his employment.

58....If the covenant is to operate after the termination of services, or it is too widely worded, the court may refuse to enforce it.

59....there is inequality of bargaining power between the parties, indeed no bargaining may occur because the employee is presented with a standard form of contract to accept or reject... ”

The Chairman has held in Annexure A, that the language of the undertaking the petitioner is clear (Annexure-C), whereas, it is a pre-printed format which the petitioner had to sign under compulsion of retrenchment.

Supreme court – Niranjan Shankar Golikari Vs Century Spinning, AIR 1967 SC 1098, negative covenant in a service agreement is void. Negative covenant after termination of contract is not valid.

Supreme court – Percept D Mark (India) Ltd Vs Zaheer Khan, AIR 2006 SC 3426, any condition after termination of contract will be invalid.

“55. On the pleading contained in the arbitration petition, there can be no escape from the conclusion that what the appellant sought to enforce was a negative covenant which, according to the appellant, survived the expiry of the agreement. This, the High Court has rightly held is impermissible as such clause which is sought to be enforced after the term of the contract is prima facie void under section 27 of the contract Act”

268. Supreme Court of India : Bank Of India & Ors vs O.P. Swarnakar Etc on 17 December, 2002, Bench: H Sema, S Sinha on the topic of VRS

..... It is difficult to accept the contention raised in the Bar that a contract of employment would not be governed by the Indian Contract Act. A contract of employment is also a subject matter of contract. Unless governed by a statute or statutory rules, the provisions of the Indian Contract Act would be only applicable at the formulation of the contract as also the determination thereof.
22nd March 2016 From India, Salem
I would like to add further to the discussion that if such would have been the case, no Ex Serviceman could join any PSU or Govt jobs after taking premature retirement from armed forces with F&F dues. So restricting an PSU employee for availing any avocation after termination would amount to discrimination.
19th April 2016 From India, Pune
Was ex gratia paid to all those who took VRS?
When you left by VRS,how many years service did you put in?
The prior condition that if you opt for VRS and take exgratia,then you cannot get/seek employment in State Government/PSU is valid legally.
You will have to refund the ex gratis amount.
You can quote various judgements-but specific details of why judgement has come needs analysis.
I agree with learned member Shri Dhingra in his opinion.
Your current employer will take action when previous PSU writes to them.
Source of PSU finance is basically Government and rules are by and large common.
19th April 2016 From India, Pune
#Anonymous
Was ex gratia paid to all those who took VRS? - Yes

When you left by VRS,how many years service did you put in? - 16

The prior condition that if you opt for VRS and take exgratia,then you cannot get/seek employment in State Government/PSU is valid legally. - It is violating contract act 27 and number of supreme court decisions (no employer can restrict an employee after termination)

You will have to refund the ex gratis amount. - It is violating contract act 73 (no loss suffered by PSU 1)

You can quote various judgements-but specific details of why judgement has come needs analysis. - yes

I agree with learned member Shri Dhingra in his opinion. - fine

Your current employer will take action when previous PSU writes to them. - the rules state "dishonesty against company and within company premises" is misconduct. If the employer is allowed to initiate disciplinary action for any problem outside company, no employee will be safe (like housing loan default, credit card default, phone bill, house tax etc - which are all pertaining to Govt agencies)

Source of PSU finance is basically Government and rules are by and large common. - yes. But, any contract has to be signed as per legal provision. Any contract violating contract act is invalid and not enforceable.
19th April 2016 From India, Salem
Well if you are so sure about legal position,all the best.
People have given opinions.
Remember PSUs also have their legal advisors and no such term or condition will be approved by the respective State Government if it violate law.
This condition of refunding ex gratis is seen in VRS offers made by various state PSUS
19th April 2016 From India, Pune
I need Transfer letter format for sister concern company as new of employee from my company are transfer from parents company to sister concern......Request you to please send me format for that................
20th April 2016 From India, Mumbai
Nathrao ji,

Sorry for not appearing on the site for about 50 days due to ill health on account of post-operative problems and other preoccupations. Also, I am thankful to you for agreeing with my view point.

Anyway, let the anonymous author be happy with his own contentions. As per my guess, it was not his practical or personal problem. Rather, probably as a law student, it can be his moot court problem or a regular law school essay on a particular theoretical problem with reference to the citations, he put. At Lawyers Club India, I usually avoid responding to such students' exercises, specifically of the anonymous authors, as they starts putting a lot of supplementary questions resulting in to waste of precious time of other members just to solve their own academic exercises. Here, I thought most people come with their own personal or official problems to expect some guidance in doing the things appropriately. So, I tried to solve his problem by virtue of my knowledge and experience.

Had he some real problem of his own, he would have come forward with the real situation faced by him along with the case history, other backgrounds and the present status of his case with the whole lot of the references that he subsequently brought one by one as well as his own contentions to call for opinions of other experts with practical experience. These moot court problems or the academic exercises have nothing to do with the practical aspects of law. These exercises are meant just to make mock exercises of mock courts t know how effectively, rightly or wrongly, the law students can justify their point. You would have noticed, initially he simply put an academic type of question without discussing the background of his case, circumstances and characteristics of the case, if he really would have faced such a problem.

So, let him be happy with his own contentions and try his luck practically in a real court of law with such type of his own contentions, when he becomes a qualified lawyer.
10th May 2016 From India, Delhi
Mr. Selvan,
Thanks for showing concern with my health. I am reccovering gradually.
I shall see the link as and when I find that convenient and the comfort to sit for long time before my desktop. For the present, I can only say that the contract act is not only the base to regulate all appointment. It has to be seen as a subsidiary tool to the service rules. So far as legal aspect of the case is concerned, similarities in cases are rare and that is always dependant upon the similarities in nature, characteristics and the ground realities of the cases being compared.
18th May 2016 From India, Delhi
I came across an article by an eminent SC lawyer, explaining in detail why an employer can not enforce ANY condition on an employee after the period of employment (after retirement, resignation, dismissal, VRS etc). It is applicable for all cases of bond, undertaking, appointment order or any other type of promise to do or not do something like not doing some business, not joining a competitor, not joining another PSU etc. This article will be very useful for many people.
16th July 2016 From India, Salem

Attached Files
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File Type: pdf Kami Export - Negative Covenant in Contract of Employment.pdf.pdf (141.9 KB, 39 views)

Mr. Sas,
You should not forget that the condition was imposed prior to leaving service and that agreement of the employee with his employer was sacrosanct for the purpose of service laws read with contract act. However, if you believe that article by some lawyer can render the law as null & void, nobody prohihibits you in doing so, provided you are able to convince the judge that there is no need to follow the law of land in view of such an article.
17th July 2016 From India, Delhi
Mr. Sas,

In section 27 of Contract Act there is exception also, which the article has referred that you intended to ignore. I won't like to make it easy for you to provide you ready made answer for your academic query. I would only advise you to re-read at least the full part of paragraphs at 2nd page of the article that refers to Justice A.P.Sen judgment.

Moreover, I have already made it clear that in your case that the condition was imposed prior to leaving service and that agreement of the employee with his employer was sacrosanct for the purpose of service laws read with contract act.

However, if you believe that article by some lawyer can render the law as null & void, that is your sheer misunderstanding A judge of the case is not bound to follow the text of any such an article. I once again stress, it is not any article written by any SC lawyer based on any judgment that could render law of the land as null & void, it is the reality of situation, characteristics, circumstances, etc., attached to the case in particular, that make the law interpreted correctly in the courts of law.
17th July 2016 From India, Delhi
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).
18th July 2016 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.
19th July 2016 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).
25th July 2016 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.
25th July 2016 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. "
8th August 2016 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.
3rd November 2016 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.
4th November 2016 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.
4th November 2016 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?
5th November 2016 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.
5th November 2016 From India, Salem
When you realise, "I am not a judge of the CAT and I can not answer this question.," what was your intention to inform the forum members, like "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?" Before making your post, you could better have made sure about the CAT's jurisdiction.
A matter of commonsense, which you should have understood well, when there was no criminal FIR how any court could order for your arrest, more so when the CAT did not have any power to order for arrest?
Anyway, you may live with your own perceptions.
Best of luck!
6th November 2016 From India, Delhi
Members of the Community may feel free to read my post, dated 19th July 2016 and can see if made any personal accusation anywhere, as contended by the author. My post started with the words, "IF AN EMPLOYEE."
Members may also like to see the advice of Shri S. Prabhkakar, dated 25th of July 2016, where he tried to give clarification stating, "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, when the member raised objection on my post. I tried to make him understand, what the employer could have been capable of doing legally.
Anyway, I can only wish him best of luck, if he is satisfied only with the interim stay by the CAT.
6th November 2016 From India, Delhi
The Post no 24, dated 19 July 2016 was edited by the administrator by removing the wild personal allegations by the learned senior member, which the member has conveniently forgotten. I hate to reproduce the original unkind post again. The learned member can check his in-box for the mail dated 26 July in which I have reproduced the original post
I bear no hard feelings or grudge against anyone. I understand that all views are personal and it has no bearing or effect on others. I will update the further developments as it happens.
Satyameva Jayate !!
7th November 2016 From India, Salem
If you "hate to reproduce the original unkind post again", and "bear no hard feelings or grudge against anyone," what was your object to state here on 3rd November, "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", whereas neither I nor any other members desired to know what was the outcome of your application or whether you are arrested or not?
However, if you want to make the members feel that you are the best judge of the world or you want to show them to be the best equipped with the legal knowledge, you may post anything here or in other various forums.
But, now I would be curious to know the final verdict in your case. You would be welcome to post that here along with copy of judgment for the guidance of one and all.
Best of luck.
8th November 2016 From India, Delhi
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