Monthly Archives: May 2018

Delay in Payment of Retirement Dues – Penal Interest

Interest on delayed payment on retiral dues has been upheld time and again in a catena of decisions. In Shamal Chand Tiwari v. State of U.P.¸(W.P. No. 34804 of 2004) decided on 06.12.2005 it was held: “Now the question comes about entitlement of the petitioner for interest on delayed payment of retiral benefits. Since the date of retirement is known to the respondents well in advance, there is no reason for them not to make arrangement for payment of retiral benefits to the petitioner well in advance so that as soon as the employee retires, his retiral benefits are paid on the date of retirement or within reasonable time thereafter. Inaction and inordinate delay in payment of retiral benefits is nothing but culpable delay warranting liability of interest on such dues. In the case of State of Kerala v. M. Padnaban Nair, 1985 (1) SLR 750, the Hon’ble Supreme Court held as under:
“Since the date of retirement of every Government Servant is very much known in advance we fail to appreciate why the process collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government Servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government Servant immediately after his retirement cannot be overemphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.” Dr. Chandrakant Sharma v. Vice Chancellor, 2017 (1) ESC 128.

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Filed under Employment Law, Interest on Retiral Dues

Resolution – Meaning of

Black’s Law Dictionary defines “resolution” as a main motion that formally expresses the sense, will, or action of a deliberative assembly. Advanced Law Lexicon by P.Ramanatha Aiyar, inter alia, provides that “a resolution is a procedural means available to the members of the Parliament or the State Legislature and the Ministers to raise a discussion in a House on a matter of public interest. It is a substantive motion. It is in the form of a declaration of opinion or a recommendation or in the form so as to record either approval or disapproval by the House of….”The underlying principle of a valid resolution is that it must be the expression of collective will of the resolving body. It is for this purpose that an agenda of the meeting is circulated amongst all members to enable them to participate in the meeting. Invite to all members of the general body to participate in a meeting is essential to ensure that the resolution should be passed unanimously or that each member must be present at the time of voting. What it means is that it should be passed with opportunity to all members to deliberate on the issue. A member may, or may not, participate in a meeting that is his choice. But an invitee must nevertheless be there for him to attend the meeting so that he has opportunity to deliberate on the issue. Board of Trustees v. Registrar, 2018 (126) ALR 296.

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Filed under Corporate Law, Resolution

Purpose of ‘Recognition’ and ‘Affiliation’

Under Section 14 and particularly in terms of Section 14(3) (a) of the National Council for Teacher Education Act, 1993, the NCTE is required to grant or refuse recognition to an institute. It has been empowered to impose such conditions as it may consider fit and proper keeping in view the legislative intent and object in mind. In terms of Section 14(6) of the Act, the examining body shall grant affiliation to the institute where recognition has been granted. In other words, granting recognition is the basic requirement for grant of affiliation. It cannot be said that affiliation is insignificant or a mere formality on the part of the examining body. It is the requirement of law that affiliation should be granted by the affiliating body in accordance with the prescribed procedure and upon proper application of mind. Recognition and affiliation are expressions of distinct meaning and consequences. In Bhartia Education Society v. State of Himachal Pradesh, (2011) 4 SCC 527, it was held:
“The purpose of ‘recognition’ and ‘affiliation’ is different. In the context of the NCTE Act, ‘affiliation’ enables and permits an institution to send its students to participate in public examinations conducted by the examining body and secure the qualification in the nature of degrees, diploma and certificates. On the other hand, recognition is the licence to the institution to offer a course or training in teaching education.” Dr. A.H. Rizvi Degree College v. State of U.P., (2018) 1 UPLBEC 787.

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Filed under Affiliation and Recognition, Education Law

Order of Appointment – Obtained Fraudulently

Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppels against the employer/authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppels against the employer to cancel such appointment or approval since “Fraud and justice never dwell together”. Committee of Management v. State of U.P., (2018) 1 UPLBEC 610.

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Filed under Employment Law, Fraudulent Appointment