Section 25 F of Industrial Dispute Act, ” No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) The workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:

(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months; and

(c) Notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.”

The conditions in clauses (a) &(b) of section 25 F of Industrial Disputes Act are categorically imperative and those conditions must be fully complied with before effecting retrenchment or the termination. The sole object of giving a month’s notice in writing or payment of wages for the period of notice in lieu of the notice as well as the compensation determined in accordance with clause (b) is that the workman will not be forced on the street on termination of his service. Such an object would be frustrated if adjustment of the dues is permitted. The employer can not adjust the dues from retrenchment compensation. It is there fore, not permissible for employer to make adjustment of money due from employee towards compensation and wages for period of notice which are two preconditions provided in section 25F (a) & (b) of the Industrial Dispute Act.

Filing of case in civil court takes a long time and a lot of money. The Consumer Protection Act, 1986 has been enacted to provide for better protection of the interests of the consumers. It provides the speedy mechanism to redress the grievance of consumer. Some time people file the false complaint before the forum against the company.

To save the company from false and frivolous complaint , Section 26 has been inserted in The Consumer Protection Act,1986 in 1993. This section says , ” Where a complaint instituted before District Forum, the State Commission or , as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.”

Where the complaint is mala fide, vexatious and frivolous and the opposite party has to incur expenses or contesting the complaint, the Redressal Forum should saddle the complainant with cost. Where the issue involved is a legal issue, the complaint can not be said to be frivolous.

Gratuity is an amount payable to an employee for the purpose of safeguarding his life after cessation of employment. It is to ensure that employee does not become destitute after retirement. It can be forfeited only when the misconducts as prescribed are committed by him resulting into his dismissal from service since the gratuity has statutory protection from civil, revenue or criminal court.No deduction can be made from the gratuity of an employee unless a notice of hearing has been issued to him.

A basic principle of natural justice is that before any action is taken, the affected person must be given notice to show cause against the proposed action and seek his explanation. Any order passed without giving notice is against the principles of natural justice and is void ab initio.

Even if there is no provision in the statute about giving of notice, if the order adversely affects the rights of an individual, the notice is required to be given. Further it is necessary that the notice must be clear, specific and un –ambiguous. The charges should not be vague and uncertain.

Partnership is the form of business organization, where two or more persons can join together or jointly carrying on some business. It is an improvement over the ‘sole-trade business’, where one single individual with his own resources, skill and effort carries on his own business.

In a partnership, a number of persons could pool their resources and efforts and could start a much larger business. In case of loss also, the burden gets divided amongst various partners in a partnership.

According to Section 4 of the Indian Partnership Act, ” The relation of partnership arises from contract and not from status; and , particular, the members of a Hindu undivided family carrying on a family business as such, or a Burmese Buddhist husband and wife carrying on business as such, are not partners in such business.”

Partnership is the result of agreement. Agreement here means a contract. It arises from an agreement between two or more people. It cannot arise from status. The presence of agreement is a must. It indicates the voluntary contractual relationship of partnership.

—Contributed by Deepak Miglani Legal Buddy

Retrenchment means the termination of the service of a workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but it does not include the following:-

• Voluntary retirement of the workman,

• Retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf,

• Termination of service of the workman as result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under stipulation in that behalf,

• Termination of the service of a workman on the ground of continued ill-health.[1]

The conditions in clauses (a) &(b) of section 25 F of Industrial Disputes Act are categorically imperative and those conditions must be fully complied with before effecting retrenchment or the termination. The sole object of giving a month’s notice in writing or payment of wages for the period of notice in lieu of the notice as well as the compensation determined in accordance with clause (b) is that the workman will not be forced on the street on termination of his service. Such an object would be frustrated if adjustment of the dues is permitted. It is there fore , not permissible for employer to make adjustment of money due from employee towards compensation and wages for period of notice which are two preconditions provided in section 25F(a) & (b) of the Industrial Dispute Act.

[1] Section 2(oo) of the Industrial Dispute Act,1947

The Payment of Gratuity Act does not prescribe any limitation to claim gratuity.

An employee can file an application for gratuity any time.

It is an obligation on the part of the employer to pay the gratuity after retirement or after termination of employee’s service. The employee should complete at least five years service to be entitled to receive gratuity.

Payment of gratuity is not a bounty to the employee by the employer. It is the right of an employee to claim gratuity. The employer can not delay in disbursement of gratuity. The amount should be disbursed without delay.

-–Contributed by Deepak Miglani

“Precedent” ordinarily means, any decision or a judgment which has a binding force.

Every decision contains three basic postulates which are as given below:-

• Findings of material facts, direct and inferential. An inferential finding of facts is the inference which the judge draws from the direct or perceptible facts.

• Statements of the principles of law applicable to the legal issues raised by the facts of a particular case.

• Judgment based on the combined effect of the above.

A decision is an authority for what it actually decides.The essence in a decision is its ratio.

The enumeration of the reason or principle on which a question before a court has been decided is alone binding as a precedent.

Article 19(1) (a) says that all citizens shall have the right to freedom of speech and expression but the state can put reasonable restrictions on this right on the following grounds:-security of the State, friendly relations with foreign states, public order, decency and morality , contempt of court, demotion, incitement to offence and integrity and sovereignty of India.

The expression "Freedom of press" has not been used in Article 19 but it is comprehended with in Article 19(1)(a). The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There can not be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgements. Freedom of press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.

Freedom of press has always been a cherished right in all democratic countries. The newspaper not only surveys news but also ideas, opinion and ideologies.  It is regarded as the fourth pillar of democracy and is made for  the welfare of the country and its people. But this pillar has been infected by the virus of corruption. Fake Sting operation on Uma Khurana by a Prakash Singh, reporter of Live India channel is the latest example.  Now press is invading the privacy of people in the name of sting operation.  Carrying out the sting operation is right in some cases but there should be a code of conduct of doing such activities.  It is the duty of each and every person related to journalism that how they understand and fulfil their responsibilities and keep themselves away from controversies. Time has come to save this fourth pillar of democracy.

For any query:- legalbuddy@milagrow.in