Employer and employee

High Court while exercising its judicial review powers cannot indulge in such exercise and doing so could require the court to engage with a factual dispute involving the conflict of opinion regarding potential and competence of the employee as determined by the Human Resources department of an organization and the employee's self-assessment of his own potential and competence

Such would drag the Court into the domain of policy as the question of how best to manage the Human Resource department of an organization, how to motivate employees, which employees are to be placed on the fast track of career progression, how to train and prepare them for leadership, and how best to incentivize them, etc., are quintessential policy matters.

At least four discernable components exist for promotion decisions for purposes of a Court exercising judicial review of the decision: (i) mandatory legal requirements, the failure to observe which can lead to procedural impropriety; (ii) objective criteria, i.e. eligibility requirements that can be verified by the Court on the basis of available record; (iii) the subjective evaluation of the competence, fitness or potential of an employee that falls within the domain of primary decisionmaker; and (iv) the reasoning of the decisionmaker which if perverse or reflecting bias or malice or based on extraneous consideration can result in an illegal or irrational decision that can be reviewed by a Constitutional Court

Given these components of a promotion decision High Court would intervene and exercise judicial review of such decision where (i) there is a breach of principles of procedural fairness or natural justice, (ii) where employment rules and criteria for promotion prescribed therein have been breached, or irrelevant and extraneous consideration have informed the decision leading to illegality, (iii) when the objective criteria regarding eligibility for promotion have been misapplied and such misapplication is evident from the record (i.e. miscalculation of years of service, etc.), and (iv) where discrimination or malice is floating on the surface of the record, or the reasoning of the decisionmaker is perverse leading to the conclusion, without the Court indulging in any factual controversy, that the decision undermines the fundamental right of employee to be treated in accordance with law and without discrimination.

Word 'project' indicated any endeavor which was for a definite period of time and upon the completion of the said project, employees who were hired for that definite period had to be relieved from their duties.

Respondent was a retired employee of Overseas Pakistani Foundation and his pension benefits were withheld due to pendency of inquiry against him

Single Judge of High Court in exercise of Constitutional jurisdiction directed Overseas Pakistani Foundation to finalize inquiry against respondent within period of one month failing which pension benefits were to be released to respondent

Validity

Respondent had agitated claim pertaining to terms and conditions of his service with Overseas Pakistani Foundation

Service Rules/Regulations governing terms and conditions of service of respondent were not statutory

Division Bench of High Court set aside judgment passed by Single Judge of High Court as Constitutional petition against Overseas Pakistani Foundation was not maintainable

Division Bench of High Court observed that Overseas Pakistani Foundation to consider grievance of respondent regarding non-payment of his pension benefits and to make decision at earliest

Intra-court appeal was allowed accordingly.

Historical background and change in scope and applicability of the doctrine due to shifting public policy/social change stated.

On the question of severance of a restrictive trade covenant, the approach adopted in the case reported as Attwood v. Lamont [1920] 3 KB 571 , CA was not to be approved as it limited severance to situations where the restrictive covenant was in effect a combination of different covenants

Whereas the approach on severance adopted in the case reported as Beckett Investment Management Group Ltd v. Hall [2007] ICR 1539 , CA, ('the Beckett approach') which used a three pronged criteria, was to be approved

On the Beckett approach, the first criterion was whether the unenforceable provision was capable of being removed without the necessity of adding to or modifying the wording of what remained - this was called the blue pencil test

Second criterion was that the remaining terms continued to be supported by adequate consideration

Employer who sued on a covenant made otherwise than under seal must show that he provided consideration for it; this would not usually be in dispute

Third criterion was that the removal of the unenforceable provision did not so change the character of the contract that it became not the sort of contract that the parties entered into at all

Said criterion was the crucial criterion but it was better to express it as being whether removal of the provision would not generate any major change in the overall effect of all the post-employment restraints in the contract

Employer would have to establish that the provision's removal would not do so

Focus was on the legal effect of the restraints, which would remain constant, and not on their perhaps changing significance for the parties and in particular for the employee.

Claimant sought an injunction to enforce a restrictive covenant in the defendant's contract of employment which provided that for a six month period she could not "directly or indirectly engage or be concerned or interested in any business carried on in competition with" any of the claimant's businesses

Defendant argued that the covenant was in unreasonable restraint of trade and thus void since it prevented her from becoming a shareholder in a competitor of the claimant

Trial judge granted the claimant the injunctive relief sought on the grounds that the covenant was enforceable since it did not prevent the defendant from becoming a shareholder in a competitor and was therefore not in unreasonable restraint of trade

Court of Appeal allowed the defendant's appeal and found that the covenant was unenforceable because the prohibition on being "interested in" the business of a competitor did prohibit the acquisition of a shareholding and was therefore too wide and in restraint of trade, and that the words "interested in" could not be severed so as to save and enforce the covenant

Held, that in substance as well as in form the restraint on shareholding was part of the restraint on the defendant's ability to work after her employment with the claimant ended and therefore the doctrine of "restraint of trade" applied

In the present case, the phrase "engaged or concerned or interested" used in the impugned covenant had long been included in standard precedents for the drafting of non-competition covenants and treated as including a shareholding prohibition

Claimant was unable to advance a realistic alternative construction of the word "interested"

Natural construction of the word "interested", consistent with long standing authority, was that it covered a shareholding, whether large or small, and therefore the clause was in unreasonable restraint of trade and unenforceable unless the word could be severed and removed from the rest of the impugned clause

Words "interested in" were capable of being removed from the restrictive trade clause without the need to add to or modify the wording of the rest of the clause and removal of the prohibition against the defendant being "interested" would not generate any major change in the overall effect of the restraints

Accordingly, the words 'interested in' would be severed and removed and the injunction was to be restored

Appeal was allowed accordingly.

Employee could not be allowed to retain the benefit of his own wrong and could not seek protection behind an order of the Court.

Plea raised by plaintiff was that due to failure of defendants to provide medical treatment, he had suffered permanent physical disability due to injury sustained by him during duty

Validity

Defendants neither produced any document about complete recovery of plaintiff nor had questioned authenticity of documents produced by plaintiff

Expert opinion of doctors further substantiated the fact that till March-1999 plaintiff was not fully recovered from injury which inhibited his pursuit of career

Testimony of plaintiff (employee) and undisputed documentary evidence produced by him weighed in favour of plaintiff as against oral evidence of defendant that complete medical treatment was given to plaintiff

To extent of negligence shown by defendants (employers) in providing incomplete medical treatment of plaintiff stood proved

Suit for damages and compensation was decreed accordingly.

Plea raised by plaintiff was that due to failure of defendants to provide medical treatment, he had suffered permanent physical disability due to injury sustained by him during duty

Validity

Defendants neither produced any document about complete recovery of plaintiff nor had questioned authenticity of documents produced by plaintiff

Expert opinion of doctors further substantiated the fact that till March-1999 plaintiff was not fully recovered from injury which inhibited his pursuit of career

Testimony of plaintiff (employee) and undisputed documentary evidence produced by him weighed in favour of plaintiff as against oral evidence of defendant that complete medical treatment was given to plaintiff

To extent of negligence shown by defendants (employers) in providing incomplete medical treatment of plaintiff stood proved

Suit for damages and compensation was decreed accordingly.

Petitioners were rendering janitorial services in various offices and branches of the state owned Bank for several years, on the basis of contracts executed directly between them and the bank for different spans of 11 months, from time to time

Services rendered and work performed by the petitioners was of a permanent nature

Like any other employee or worker, the petitioners were rendering manual services for the Bank

Neither the petitioners were supplying any manpower nor any goods to the Bank; nor were they getting any job done by acquiring and/or engaging the services of others; nor were they paid on item to item and/or project basis, thus they clearly did not fall within the definition or category of "contractors"

Bank could not be allowed to exploit its workers and defeat the spirit and purpose of law by calling such workers as "contractors" instead of "contract employees" and "contract employment"

Since the petitioners for all intents and purposes were engaged/employed by the Bank and were being paid salary/ compensation for the services they rendered, on monthly basis from year to year, and having so served for more than one year on several 11 months stints, they had earned entitlement for regularization of their services with the Bank

Supreme Court directed the bank to regularize the services of the petitioners as permanent employees

Appeal was allowed accordingly.

Petitioners were rendering janitorial services in various offices and branches of the state owned Bank for several years, on the basis of contracts executed directly between them and the bank for different spans of 11 months, from time to time

Services rendered and work performed by the petitioners was of a permanent nature

Like any other employee or worker, the petitioners were rendering manual services for the Bank

Neither the petitioners were supplying any manpower nor any goods to the Bank; nor were they getting any job done by acquiring and/or engaging the services of others; nor were they paid on item to item and/or project basis, thus they clearly did not fall within the definition or category of "contractors"

Bank could not be allowed to exploit its workers and defeat the spirit and purpose of law by calling such workers as "contractors" instead of "contract employees" and "contract employment"

Since the petitioners for all intents and purposes were engaged/employed by the Bank and were being paid salary/ compensation for the services they rendered, on monthly basis from year to year, and having so served for more than one year on several 11 months stints, they had earned entitlement for regularization of their services with the Bank

Supreme Court directed the bank to regularize the services of the petitioners as permanent employees

Appeal was allowed accordingly.

Such post could not be kept vacant unless abolished by the competent authority.

Employer could not put the employee on contract basis/ probation for an unreasonably long period when the appointment was made against a permanent vacancy/sanctioned post

Such practice was deprecated by the Supreme Court.

Petitioner employee challenged the proceedings of promotion by the employee Company and sought consideration of his promotion

Validity

Promotion of petitioner employee being not governed by statutory rules, could not be enforced through constitutional jurisdiction of High Court

Constitutional petition was dismissed in circumstances.

Business of a company such as shipping companies was not a novel or unique business which was not known to the people at large

Nothing was on record as to what trade secrets or confidential information had been passed on by the employee-plaintiff of the company

No such embargo existed on the employee-plaintiff to commence a competitive business

Only obstacle was that employee-plaintiff should not disclose trade secret and confidential information which company had failed to point out

Companies with whom defendant was associated with or working for might have found the employee-plaintiff more suitable and appropriate and/or economical and employee might have been providing better services

Such act of employee-plaintiff did not amount contrary to the contract between the employee and company

No agreement could be made in violation of Art.18 of the Constitution

Employee-plaintiff had served the company-defendant throughout his life

Matter of livelihood of employee could not be denied on account of the score that it would amount to running a parallel business

Employee-plaintiff had resigned much prior to the alleged amendment and same could not be applied retrospectively

Company-defendant could not enforce such terms which were contrary and violative of the fundamental and constitutional rights

Application against stopping the pension by the company was allowed in circumstances.

Employer could not put the employee on contract basis/ probation for an unreasonably long period when the appointment was made against a permanent vacancy/sanctioned post

Such practice was deprecated by the Supreme Court.

Such post could not be kept vacant unless abolished by the competent authority.

Words "in the service of" would mean "in the employment of" meaning thereby that there was a relationship of employer and employee.

Acquittal in a criminal case had no bar on departmental authorities to take action against the employee in accordance with law applicable to his service.

Punishment awarded to the employee was in consequence of the inquiries conducted by the departmental authorities independent of criminal case

Acquittal in a criminal case would not give certificate to the employee to absolve him from the departmental proceedings

Both criminal and departmental proceedings could go side by side being different in nature

Courts below had erred to absolve the employee of the charge and proceedings held departmentally on the basis of a decision given in a criminal case

Impugned orders passed by the courts below were set aside and case was remanded to the Labour Court to decide the validity of inquiry and record findings with regard to punishment awarded to the employee

Labour Court was directed to complete proceedings with a decision on merit within a period of two months

Constitutional petition was disposed of in circumstances.

Mere acceptance of legal dues by an employee would not amount to waiver to estop him from challenging the order passed against the employee.