Question: Breach of agreement to sell : what action should be taken against the dealer. I entered into an agreement to sell with a land dealer to sell my land within one year from the date of registration of agreement. After the agreement the dealer has refused to perform his duty under the said agreement. In this kind of breach of agreement to sell, what action should be taken against the dealer? Can I sell this land to anyone despite this agreement to sell?
According to section 54 of the transfer of property act an agreement to sell is an executable contract. In Hyderabad Engg. Industries v. State of A.P., (2011) 4 SCC 705 the Supreme Court has explained the effect of agreement to sell as:
when the transfer is in presenti (immediate transfer), it is called a “sale”. But when the transfer is going to be completed at any future time and subject to fulfilment of some conditions subsequently, it will be an agreement to sell.
As per the terms of your agreement the dealer has to sell your land within one year from the date of signing the agreement. He failed to sell your land within the stipulated time. Hence, the agreement has been breached by the dealer.
In this situation, if there is any compensation regarding the breach of agreement mentioned in the agreement, he has to compensate you accordingly. After the breach of agreement both parties became free from the duties and obligation mentioned in the agreement to sell.
Now the dealer has no right to sue against you on the basis of that agreement. You are free to sell that land to anyone. If you want better security or avoid future litigation, you can file a suit for declaration against the dealer that the agreement is null and void.
In a declaratory suit, the plaintiff seeks a declaration from the court regarding the legal position or status of a particular matter. This can include disputes related to contracts, property rights, intellectual property, and other legal issues where a declaration of rights is sought.
After obtaining the decree in the declaratory suit the dealer shall be prohibited to claim any right in this property.
Question: Maternity leave for contractual employees in Uttar Pradesh. I want to know whether maternity leave is available for contractual employees in Uttar Pradesh? Currently I am working in XXX department on a contractual basis. After three years of service I have applied for maternity leave but my head of the department has refused stating that I am not eligible. There is some dispute regarding my posting in the department because the head sir wants to take work from another employee who is his relative. Hence, he is refusing to grant maternity leave. Please help.
Maternity leave refers to a period of time during which a woman is allowed to take time off from work in order to recover from childbirth, bond with her newborn, and attend to the needs of her child.
It is considered a form of social insurance because it is a benefit provided by the government or an employer to ensure that women have the necessary support and protection during this significant life event.
The primary purpose of maternity leave is to support the health and well-being of both the mother and the child. After giving birth, women typically need time to physically recover, as childbirth can be a demanding process.
Maternity leave allows them to rest, regain their strength, and take care of their own health needs. This crucial period allows mothers to establish a strong emotional connection with their infants, promoting their overall development and well-being. By having dedicated time to focus on their children's needs, mothers can provide the necessary care and attention during these early stages of their child's life.
Overall, maternity leave is a form of social insurance that recognizes the importance of supporting maternal and child health, as well as providing necessary family support during this significant period in a woman's life.
In Dr. Rachna Chaurasiya v. State of U.P. 2017 (11) ADJ 399 (DB) the Hon'ble High Court Allahabad has held that daily wage (contractual) employees are also entitled for maternity leave.
On a perusal of different provisions of the Act, 1961 as well as the policy of the Central Government to grant Child Care Leave and the Government Orders issued by the State of U.P. adopting the same for its female employees, we do not find anything contained therein which may entitle only to women employees appointed on regular basis to the benefit of Maternity Leave or Child Care Leave and not those, who are engaged on casual basis or on muster roll on daily wage basis.
Dr. Rachna Chaurasiya v. State of U.P. 2017 (11) ADJ 399 (DB)
I Anshu Rani v. State of U.P., Writ-A No. 3486 of 2019 the Hon'ble High Court Allahabad has held that once the State of U.P. has adopted the provisions of the Maternity Benefit Act, 1961, as determined by this Court, the said Act of 1961 would apply with full force, regardless of the provisions stated in the Financial Handbook.
You are entitled to receive maternity leave as per the provisions of the Maternity Benefits Act, 1961. There is no provision that excludes daily wage, casual, muster roll employees, and contractual employees from availing these benefits.
Upon refusal to get maternity leave you can file a writ petition in the high court under Article 226 of the constitution of India. You should seek quashing of the order thereby your leave has been rejected. The high court may quash the order and may direct to sanction that benefits as per the provision of Maternity Benefits Act 1961.
Question: Sub inspector is conducting investigation under SC/ST Act. In the first information report the specific allegations were made towards the offence punishable under Sections 3(i)(x) and 3(2)(v) S.C/S.T. Act along with Section 307 and 149 IPC. the investigation has been handed over to the sub inspector XXX. That sub inspector is conducting investigation under SC/ST Act. The offence is punishable under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Any remedy?
It is pertinent to mention that as per Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, the offence committed under the S.C./S.T. Act should be investigated by a police officer holding the rank of Deputy Superintendent of Police or higher.
The provision mentioned is mandatory, and any violation of it would invalidate the investigation. In this situation, you should approach the Judicial Magistrate under Section 156(3) of the Criminal Procedure Code (CrPC) to seek appropriate orders for transferring the investigation to a police officer of the rank of Deputy Superintendent of Police or higher
If you receive no response from the Judicial Magistrate under Section 156(3) CrPC, you have the option to approach the High Court under Section 482 CrPC. The High Court can then direct the state to transfer the investigation to the Circle Officer within whose territorial jurisdiction the offence is committed.
It is important to rectify this error before filing of the charge sheet, to prevent the accused from filing a petition in the High Court under Section 482 CrPC to seek the quashing of the charge sheet. Because if the sub inspector is conducting investigation under SC/ST Act and files charge sheet, it shall vitiate the investigation in per se. The high court will have no option except to quash the charge sheet. To avoid any untoward situation you should take prompt action to correct this legal impediment.
Question: Attack at the vital part by deadly weapon amounts to murder. My brother was murdered by villagers on the issue of harvesting fields. The accused were armed with deadly weapons like shotgun, ballam, bhala, sword and lathi-danda (club). They immediately came to my field and stopped my brother from moving the tractor to the field. During the heated exchange of words, one of the accused had hit my brother with ballam at the centre of chest with full force. That attack was targeted at the vital part. After receiving that injury my brother fell and died immediately. The trial court convicted the accused for culpable homicide instead of murder and sentenced to ten years rigorous imprisonment. What to do?
As per the injuries suffered by the deceased and his cause of death, the offence of murder is made out. Ballam is a deadly weapon if used with full force at the vital part of the body, causing injuries sufficient to cause death in the natural course. You have not shared the post mortem report. Hence, this advise is based upon the above stated facts of the case.
In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC 444 the hon'ble supreme court has held that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
- nature of the weapon used;
- whether the weapon was carried by the accused or was picked up from the spot;
- whether the blow is aimed at a vital part of the body;
- the amount of force employed in causing injury;
- whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
- whether the incident occurs by chance or whether there was any premeditation;
- whether there was any prior enmity or whether the deceased was a stranger;
- whether there was any grave and sudden provocation, and if so, the cause for such provocation;
- whether it was in the heat of passion;
- whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
- whether the accused dealt a single blow or several blows.
In your case, there was a conflict arising from the gathering of grains from the field. During the course of this enmity, the accused assembled with deadly weapons to unlawfully resolve their dispute. Subsequently, they reached the location of the incident. The fact that they carried the deadly weapon while heading to the scene itself establishes their common intention to use the weapon if circumstances warrant, which could potentially result in death. Therefore, the accused had the intention to kill.
Forceful attack at the vital part by deadly weapon proves intention to kill
The degree of intention to kill is the deciding factor to punish the accused for the offence of murder or culpable homicide not amounting to murder. In your case, the weapon used was a deadly weapon. Accused used that weapon with full force to inflict grievous injury to the vital part of the body. The conduct of the accused proves that he had a high degree of intention to kill.
At the time the accused used the weapon with his full force targeting the vital part of the body itself proves that he had the intention to kill the deceased. Therefore, he should be punished for the offence of murder instead of culpable homicide not amounting to murder. Punishment under Section 304 IPC seems wrong in the facts of the case. Accused should be punished under Section 302 IPC. because attack the deceased at the vital part of body by a deadly weapon establishes his intention to kill.
Employer withholding salary, I have given my resignation on 16th of May and I am currently serving a 2 month notice period. Employer withholding salary. My employer has paid me only for 1st to 15th of May and is planning to withhold my salary for the next 2 months. When asked they said they will pay me when I complete my notice period.
Asked from: Maharashtra
Employer withholding salary: According to the Indian labour laws, if you have submitted your resignation and are serving a notice period, you are entitled to receive your salary for the entire notice period, unless there are specific contractual clauses or terms agreed upon by both parties that state otherwise.
In general, an employer cannot withhold an employee's salary during the notice period unless there is a valid reason, such as recovery of dues or any financial liabilities on the employee's part.
However, even in such cases, the employer should follow proper legal procedures and provide a valid explanation for withholding the salary.
Review your employment contract
Carefully read your employment contract to understand the terms and conditions regarding notice period, salary payment, and any applicable deductions.
Communicate with your employer
Send a legal notice to your employee and express your concerns to your employer regarding the withholding of salary during the notice period. You can send that legal notice preferably via email or a formal letter, stating that you believe you are entitled to receive your full salary for the entire notice period.
Request clarification on the reasons for withholding your salary. In the meantime you may contact your company's HR department and explain the situation to them. They may be able to mediate between you and your employer to find a resolution.
Legal action when employer withholding salary
If the employer fails to address your issue and does not pay your salary during the notice period, you have the right to take legal action against him. You can file a case against him in the Labour Tribunal. Withholding salary during the notice period prima-facie seems illegal. The labour tribunal is competent to deal with your case and has power to adjudicate this issue.
Related: What to do if salary has been withheld by employer?
Question: Taking Action Against Unwelcome and Inappropriate Comments at Workplace | Sexual Harassment. I am a victim of sexual harassment at my workplace. My colleagues have been making unwelcome and inappropriate comments about my body, appearance and personal life. They have also spread rumours about me and one of them has even asked me for sexual favours. I feel violated, humiliated and intimidated by their behaviour. I have tried to report them to the HR department, but they have not taken any action to protect me or punish the harassers. I am suffering from mental and emotional distress and I fear for my safety and career. This is a serious violation of my human rights and dignity. I want to take action against unwelcome and inappropriate comments from colleagues.
Unwelcome and inappropriate comments against a woman, demand or request for sexual favour, making sexual coloured remarks amount to sexual harassment. It has been happening at the workplace hence, it is an offence under Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act 2013.
Taking Action Against Unwelcome and Inappropriate Comments
You should file/lodge a complaint in writing to the internal committed constituted to handle acts of sexual harassment at the workplace. If no such committee has been set up in your company, then you can file such a complaint to the local committee of your district where you are currently employed.
All the offences are cognisable and also punishable under the Indian Penal Code. Hence, after making a complaint in writing to the internal committee of your company you can also lodge an FIR against them. Sexual harassment is punishable under Section 354 IPC, making sexual remark is also punishable under Section 354A and indecent remark is punishable under Sectio 509 IPC.
Filing a Complaint and Reporting Sexual Harassment
Filing a written complaint to the internal committee or local committee. The internal committee empowered to take appropriate action against those employees. These are the possible courses of action against the miscreants on your complaint.
Under The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, the following are the potential punishments for individuals found guilty of sexual harassment:
Warning
The person found guilty of sexual harassment may receive a formal warning from the employer or the Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC). This serves as a cautionary measure and puts the individual on notice that their behavior is unacceptable.
Reprimand
A reprimand is a stronger form of disciplinary action that may be imposed on the offender. It involves a formal expression of disapproval, often in writing, and is recorded in the person's employment record. Loss of promotion or increment: If the accused is an employee, one of the possible consequences could be the denial of a promotion or withholding of an increment as a disciplinary measure for their misconduct.
Termination or dismissal
Depending on the severity of the offence and upon proper investigation and finding of guilt, the employer may terminate the employment of the guilty party. Dismissal can result in the immediate termination of the employment contract.
Compensation and damages
The victim of sexual harassment may be awarded compensation or damages by the employer or the ICC/LCC as a means of providing redress for the harm caused.
It's important to note that the specific punishment for sexual harassment under the Act may vary based on the nature and gravity of the offense, the policies of the organization, and the recommendations of the ICC/LCC. The Act emphasises the need for a fair and impartial inquiry before imposing any disciplinary action or punishment.
Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act 2013
Sexual harassment defined under the Sexual Harassment of Women At Workplace Act 2013. Section 2(n) of the aforesaid Act defines the acts of sexual harassment. According to it "sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—
- physical contact and advances; or
- a demand or request for sexual favours; or
- making sexually coloured remarks; or
- showing pornography; or
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
You are an aggrieved woman of sexual harassment. According to section 2(i) of SH Act 2013, an aggrieved woman is "(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent"
According to section 2(o) of the aforesaid Act, workplace includes
- any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
- any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
- hospitals or nursing homes;
- any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
- place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
- a dwelling place or a house;
You should take proper action against unwelcome and inappropriate comments from colleagues. Make a complaint in writing against those employees who are making unwelcome, inappropriate and indecent remarks against you. Along with the complaint you must lodge FIR against the person who is advancing or demanding sexual favour from you. Lodging FIR is the appropriate action along with the written complaint to the internal committee.
Can departmental inquiry be dropped upon being acquitted in a criminal case? The department had lodged an FIR against me for the offence of forgery and misappropriation. On the same basis a department inquiry was initiated against me for the misconduct in the discharge of official duty. Can departmental inquiry be dropped upon being acquitted in a criminal case? Both proceedings are running concurrently but I have been acquitted in criminal proceedings. When I approached the department to please drop the departmental inquiry on the basis of acquittal tha department has refused. I don't know what is the actual reason but there is some malafide intention to stall the departmental inquiry because they want to deprive me from the promotion and also from the ACP.
Asked from: Uttar Pradesh
Departmental inquiry be dropped upon being acquitted in a criminal case: The principle has been firmly established in law that simply quashing an FIR or an employee's acquittal in a criminal case will not have any bearing on a disciplinary inquiry. It is important to recognise that these two processes serve entirely distinct purposes.
In Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju, (2019) 10 SCC 367, the Supreme Court has held
Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives.
The same is reiterated by the supreme court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 & State of Karnataka v. Umesh, (2022) 6 SCC 563
The legal precedent has established that an officer's acquittal in a criminal court does not prevent a departmental inquiry from being conducted against them.
The disciplinary authority is not obligated to adhere to the verdict of the criminal court if the evidence presented in the departmental inquiry differs from that presented in the criminal trial.
Read also: Departmental enquiry initiated after six years: its legality and right of employee
Generally the department takes a plea that evidence produced in both inquiries (departmental and criminal) are different, therefore, the departmental inquiry must be carried on.
The basic reason for taking such a plea is that unlike a criminal prosecution, where the charge must be proven beyond a reasonable doubt, a disciplinary proceeding requires the establishment of a charge of misconduct based on a preponderance of probabilities.
The rules of evidence that apply to a criminal trial are separate from those that govern a disciplinary inquiry. Hence, the court does not drop the departmental inquiry merely on the basis of acquittal of a delinquent employee in criminal trial or quashing of criminal proceedings.
However, it is not feasible that the court may direct to drop the departmental inquiry but it may direct to conclude the inquiry within a stipulated time. For getting a time bound accomplishment of departmental inquiry you can approach the high court under Article 226 of the constitution. Otherwise, departmental inquiry cannot be dropped upon being acquitted in a criminal case.
Question: Sexual abuse by a boy nine years younger than me. Sexual abuse by a boy nine years younger than me. I am in relationship with a boy who is 9 years younger than me from past 4 years. He always used to give assurance that he sees future with me and I am not his girlfriend but his wife and he will marry me soon. We used to go on trips together and I was the bearer of all the expenditures. From past few months when I pressurised him for marriage he cut all ties with me. I am not able to bear this pain and don't know what to do. He is from Uttar Pradesh and I am from Jharkhand.
Sexual abuse by a boy nine years younger: It's important to recognize that any form of sexual abuse is unacceptable and can have serious emotional and psychological effects. If you have experienced sexual abuse by someone, regardless of their age or relationship to you, it's essential to seek support and take steps to protect yourself. Here are some suggestions on what you can do:
- Reach out for support: It's crucial to talk to someone you trust about what you've experienced. This could be a friend, family member, or a counselor/therapist who can provide guidance and support during this difficult time.
- Report the abuse: If you feel comfortable and safe doing so, consider reporting (lodging FIR) the sexual abuse to the appropriate authorities. You can contact your local police station or a women helpline 181 specifically dedicated to supporting survivors of sexual abuse in your state.
- Seek medical assistance: It's important to prioritize your health and well-being. Consider visiting a healthcare professional to address any physical or emotional effects of the abuse. They can provide medical assistance, conduct necessary tests, and offer resources for further support.
- Find a support group: Connecting with others who have experienced similar situations can be incredibly helpful. Look for local support groups or online communities where you can share your experiences, gain insight, and receive support from people who understand what you're going through.
- Take care of yourself: Engage in self-care activities that help you cope with the pain and trauma. This may include activities such as exercise, meditation, journaling, or spending time with loved ones. Additionally, consider seeking therapy or counseling to process your emotions and develop healthy coping strategies.
Remember, healing from such experiences takes time, and everyone's journey is unique. Be patient with yourself and allow yourself to grieve and heal at your own pace. Sexual abuse by a boy nine years younger is a very serious issue.
Question: Transferred to remote area where no medical facility available to a kidney patient. I have been recently transferred by the Director-General of ASI to a remote area which is also far away from my wife. It is distressing because my wife, who is also a state government employee, is worried about my health. I'm currently battling kidney failure and there is no one available to care for me. I have already submitted representations to my competent authority, requesting a modification of the transfer order. Therefore, in light of these circumstances, I kindly request that my situation be taken into consideration. Can I approach the high court for any relief?
Transfer is an administrative order, and it is generally not a subject matter for a judicial review. Hence, the court does not interfere with the transfer order. You are a kidney patient and at the current place of posting there is good medical facility available for you.
But at the next place of posting, where you have been transferred is a remote area and no such medical facility is available there. Your wife is also a government employee, and she has not been transferred along with you. Hence, in absence of wife you may face hassle in taking care of yourself.
These grounds are genuine, and the department may consider it with liberal approach to modify the transfer order. If the department is not willing to consider your circumstances and not willing to modify the transfer order, you can approach the high court under Article 226 for directing the department to consider your request in the light of prevailing circumstances and adopting humanitarian approach while deciding your representation.
If there is no administrative exigency, then department should modify the transfer order because you have genuine grounds to stay at the current place of posting. Hence, there is likely a good opportunity that the higher authority may consider your request with leniency.
Question: Not getting salary due to issue in my New Pension Scheme (NPS). I'm a central government employee. previously i was working in a govt dept as an mts, and there my nps account was opened by them. after that i got selected in Delhi police as Sub inspector so, took normal resignation from mts. There (delhi police), for the first 3 months they pay without deducting NPS. After 2 months in training, I got selected in central excise dept, so applied for technical resignation from Delhi police. Meanwhile I submitted nps transfer form, but they said that for first 3 months training we pay without deducting nps, and the whole salary will be transferred to your salaried account, and when they will start deduction for nps, I will be resigned. so don't transfer the nps here, transfer it directly to excise dept where I was going to join. And all i got in my salaried account.
Now it has been 4 months in excise department I got no salary here. they are saying that you took technical resignation from Delhi police means your service has to be added. But according to your NPS account, no data is found about Delhi police. No nps deduction from Delhi police is showing in NPS portal. that's why they are not giving me any salary. Now I'm in a huge debt. please suggest me. isn't there any rule to pay at least basic pay up to when the issue is not solved because here i have been working since 4 months? if they make me work, they should pay me. isn't it? Please suggest what should I do. Thankyou
Your new pension scheme records do not technically indicate that you have been employed or worked in the Delhi Police, as there is no evidence of any deduction or contribution by the Delhi Police in your NPS. Therefore, it is necessary for you to rectify this discrepancy by requesting the appropriate authority within the Delhi Police to transfer your NPS records to the Excise Department.
The absence of any deductions from your salary and contributions by the Delhi Police towards your NPS poses another concern. However, the NPS record can still be transferred from your previous employer to your current employer, regardless of any contribution or deduction.
At present, you have the option to submit a representation to the appropriate authority within the Excise Department, requesting to release your salary while receiving an undertaking that you will contribute to the NPS scheme once the record has been successfully transferred or received by the department.
In the event that the authority does not respond or rejects your representation, you have the option to approach the high court under Article 226 of the Constitution. This would allow you to request the court to direct the authority to release your salary.
It is important to note that the right to livelihood is considered a fundamental right under Article 21 of the Constitution of India. Therefore, the high court would be obliged to instruct the appropriate authority to disburse the petitioner's salary into their bank account, provided that the petitioner contributes their portion of the salary to their NPS account.
