Monthly Archives: April 2015

Excess Payment of Salary – Impermissibility to Recover

It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. In the following situations, recoveries by employers would be impermissible in law:
(a) Recovery from employees belonging to Class III and Class IV service (for Group ‘C’ and Group ‘D” service).
(b) Recovery from retiring employees, or employees who are due to retire within one year, of the order of recovery.
(c) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(d) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(e) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover. State of Punjab and Others v. Rafiq Masih, 2015 (2) AWC 1570.

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Divorce – Long Period of Continuous Separation

In the case of K. Srinivas Rao v. D.A. Deepa, 2013 (3) AWC 2462 (SC), it was held as under:
“Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. In V. Bhagat v. D. Bhagat, AIR 1994 SC 337, the court observed that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of cruelty, the court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, where husband and wife had been living separately for more than ten years and a large number of criminal proceedings had been initiated by the wife against the husband, the court observed that the marriage had been wrecked beyond the hope of salvage and public interest and interest of all lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. Smt. Sunaina Mehrotra v. Vijay Mehrotra, 2015 (2) AWC 1621.

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Absorption – Subsistence of Contract of Employment

It is a settled principle of law that absorption and regularisation in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination. Oshiar Prasad v. Employers, 2015 (144) FLR 830.

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Non-Service of Notice and Procedural Lapse in Service of Notice – Distinction Between

There lies a distinction between non-service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of latter category of cases, the consequential action, if taken would be sustained. It is for the reason that in case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action “illegal” whereas in the case of latter he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making of such notice on him. If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. Prabin Ram Phukan v. State of Assam, (2015) 3 SCC 605.

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Filed under Civil Law, Non-Service of Notice