Delhi High Court
M/S Hongkong & Shanghai Banking ... vs Union Of India & Ors. on 12 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.11344/2009
% Reserved on: 17th March, 2017
Pronounced on: 12th April, 2017
M/S HONGKONG & SHANGHAI BANKING CORPORATION
LTD. ..... Petitioner
Through: Mr. Sandeep Sethi and Mr.
Rajiv Nayar, Sr. Advocates with
Mr. Ateev Mathur, Mr. Amol
Sharma, Mr. Saurabh Seth, Mr.
Mohd. Umar Iqbal Khan and
Ms. Jagriti Ahuja, Advocates.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. G.C. George, Advocate for
R-1/UOI.
Respondent no. 2 in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Articles 226 and 227 of the
Constitution of India, petitioner impugns the award dated 1.6.2009
passed by the Presiding Officer, Central Government Industrial
Tribunal-cum-Labour Court-II (in short „CGITLC‟) holding that
respondent no.2 is a workman and that her services were illegally
retrenched by the petitioner. Petitioner was the employer and
respondent no.2 was the employee of the petitioner. Respondent no.2
was working as Senior Confidential Secretary with the petitioner.
Respondent no.2 during the course of her employment was posted with
Ms. Nancy Dickinson, Senior Manager at New Delhi. In around May
2005, respondent no.2 was informed by the petitioner that since the
services of Ms. Nancy Dickinson were dispensed with, hence the
respondent no.‟s 2 post of Senior Confidential Secretary had become
redundant. Ms. Nancy Dickinson had proceeded on a sabbatical leave
without it being a fixed period and which resulted in redundancy of the
post which the respondent no.2 occupied with the petitioner. The
impugned letter/order of termination dated 1.10.2005 by which
respondent no.2‟s services were terminated reads as under:-
"HSBC
Manju Saxena
Employee No.186099
New Delhi 1 October 2005
Sub: Termination of Employment
Manju,
The question of your current job becoming redundant from May 2005 has
been a subject matter of discussion and correspondence culminating in a
meeting with Mr. Ashish K. Srivastava on 23 September 2005 in Mumbai.
The Bank has offered you a generous severance package, which it is now
clear that you are not prepared to accept. The Bank also favourably
considered your request for being accommodated in some alternate job. In
the past four months since May 2005, the Bank has offered you several job
opportunities at various points of time viz. Business Development Officer,
Customer Service Officer, Clearing Officer, Banking Service Officer etc.
However, you have not expressed your willingness to accept any of the
above job opportunities, nor have you accepted the generous redundancy
package offered to you.
In the circumstances, the Bank has no alternative but to terminate your
services with effect from close of working hours of 1 October 2005. The
Bank shall be paying you six months‟ of compensation in lieu of Notice
period as provided in your contract of employment. In addition, although not
eligible, as a special case, you are also being paid compensation equivalent to
fifteen days‟ salary for every completed year of service. These amounts
totaling to INR 817,071/- (Indian Rupees Eight Lacs Seventeen Thousand
and Seventy One only) has been credited to your salary account yesterday.
This is subject to deduction of applicable tax.
You are further requested to get in touch with North India Human Resource
Department for the full and final settlement of your dues with the Bank.
Yours Sincerely
Sd/-
Shishir Agarwal
Manager Employee Relations" (underlining added)
2. The CGITLC, as per the impugned award, has held that
respondent no.2 was a workman within the meaning of the definition
of „workman‟ as per Section 2(s) of the Industrial Disputes Act, 1947
(in short „the Act‟). The CGITLC also held that respondent no.2 has
been retrenched as per the meaning of the expression „retrenchment‟ in
Section 2(oo) of the Act. It was further held that since the retrenchment
of the respondent no.2 by the petitioner fell foul of Section 25F of the
Act hence the termination of services of respondent no.2 by the
petitioner was illegal.
3. Before this Court, on behalf of the petitioner two
arguments were urged. Before I refer to the two arguments, it is
necessary to state that the case both before the CGITLC as also before
this Court was heatedly contested as regards whether or not the
respondent no.2 was a workman. Petitioner had pleaded that
respondent no.2 is not a workman and a learned Single of this Court
vide his order dated 22.3.2013 had remanded the matter to the Tribunal
to give a fresh decision on the issue as to whether respondent no.2 was
or was not a workman. The remand order was passed because the case
of the petitioner was that the CGITLC decided the issue of whether or
not the respondent no.2 is a workman without referring to the
documents and evidence which was led by the petitioner to show that
respondent no.2 is not a workman. Pursuant to the remand order, the
CGITLC has now passed a fresh award on the aspect of workman
dated 15.7.2015 again holding that respondent no.2 was a workman
within the meaning of the definition of „workman‟ under the Act.
Before this Court after arguments were addressed on behalf of the
petitioner with respect to whether respondent no.2 is or is not a
workman, learned senior counsels for the petitioner have submitted
that this Court for the purpose of the present judgment only can take
the respondent no.2 to be a workman, and that this concession is made
in the present case under Section 23 of the Indian Evidence Act, 1872
i.e petitioner has stated that though respondent no.2 can be taken as a
workman in the present case, however, legally the issue be left open as
to whether in other cases such a person is or is not a workman.
Accordingly, the issue with respect to respondent no.2 being or being
not a workman is held in favour of the respondent no.2 in the present
case, but subject to and limited by the aforesaid concession made on
behalf the petitioner.
4. On behalf of the petitioner, two arguments have been
urged for setting aside of the impugned awards dated 1.6.2009 and
15.7.2015. Firstly, it is argued that respondent no.2 has abandoned her
services with the petitioner, and therefore, since there is abandonment
of services, hence petitioner cannot claim that she has been illegally
terminated from the services. It is argued that respondent no.2 was
offered about four alternative jobs with the petitioner after Ms. Nancy
Dickinson left the services of the petitioner, and none of which four
jobs required any technical qualification, yet, the respondent no.2 out
of her own whims and fancies failed to accept any of the four posts.
Reliance is placed on behalf of the petitioner upon Section 25B of the
Act which defines „continuous service‟ to be only such service which
is such service wherein a workman does not illegally abstain from
work. It is argued that since respondent no.2 deliberately/illegally
refused to take up work in any of the four posts offered to her, hence
respondent no.2 should be taken to have abandoned the services of the
petitioner. The second argument which is urged on behalf of the
petitioner is that assuming that the respondent no.2 has not abandoned
her services, the fact of the matter is that petitioner has validly
retrenched the services of the respondent no.2 by complying with the
requirements of Section 25F(a) and (b) of the Act by giving the
respondent no.2 appropriate monetary amounts, and which monetary
amounts include the one month‟s notice pay under sub-section (a) of
Section 25F of the Act and additionally compensation equal to 15 days
of average pay for every completed year of continuous service as
required by sub-section(b) of Section 25F of the Act. It was argued
that sub-section (c) of Section 25F of the Act was directory and hence
need not have been complied with.
5. Let us take the first argument urged on behalf of the
petitioner as to whether or not respondent no.2 has abandoned her
services with the petitioner. For such purpose, reference will have to
be made to the admitted correspondence entered into between the
petitioner and the respondent no.2, and which will show that whether
respondent no.2 can or cannot said to have abandoned her services
with the petitioner. The correspondences between the parties are in the
form of e-mails. The various e-mails exchanged between the parties,
and which would be relevant for decision of the present matter, though
a bit prolix, are reproduced as under:-
"Email of the petitioner to the respondent no.2 dated 30.5.2005
(Ex.MW1/40)
From: Shishir Agarwal/MGR HRD INM/HBAP/HSBC
To: MANJU SAXENA/PLB NDH/HBAP/[email protected]
Cc: Joel M FARNWORTH/SM HRD INM/HBAP/[email protected]
Our Ref: Your Ref:
Subject: Your response to SMHR/CEO and our subsequent Discussions
Manju
This is further to the various rounds of discussion and exchange of
correspondence that has taken place with you over a period of last 2 weeks
including your last email to the CEO/SMHR dated 26.5.2005 and our
subsequent telephonic conversations on 27.05 and today morning.
We have now agreed based on your confirmation that you are interested in
continuing with a suitable employment option within the bank and hence not
interested in the severance package option at all. Based on our discussion, 2
jobs (Customer Services Manager in a Branch & Business Development
Officer for a cluster in NI) in PES business were offered to you. You have
expressed your interest in being considered for an NRI Staff Officer position
in NI as well in addition to the above.
I have explored the option on the NRI position and post discussions with the
concerned Business manager. I understand that the same is still under
discussion and the business case is likely to be put up for various approvals
in 3-4 weeks time from today. Under the circumstances at this point of time,
I can only confirm to you that should the business case get approved and the
position becomes available in NI, we will consider you for that role.
However, at this point of time, we need to also decide that in case the above
does not happen, you will need to move into one of the other 2 positions
offered to you.
Since we have now agreed that we are not considering the severance package
as an option, I am not responding to the specific issues/points raised by you
with regard to the package calculations/workings in your mail to SMHR
dated 26.05.2005.
Appreciate if you can confirm if the above is a correct representation of our
discussions till date and way forward. I will also appreciate if you can
confirm to me about the position (of the 2 offered) that you would like to
move into, should the NRI position not work out for some reasons. Will
appreciate a revert from you on these by eod 01.06.2005 to help us plan the
moves better.
best wishes
Shishir Aggarwal
Respondent no.2's response dated 30.5.2005 to the petitioner (Ex.
MW1/41)
From: Manju Saxena/PLB NDH/HBAP/HSBC
To: Shishir AGARWAL/MGR HRD INM/HBAP/[email protected]
cc: Joel M FARNWORTH/SM HRD INMHBAP/[email protected]
Our Ref: Your Ref:
Subject: Re: Your response to SMHR/CEO and our subsequent Discussions
Shishir
Firstly, I would like to thank you in getting involved sincerely, representing
on behalf of the senior management to resolve the issues amicably in the
interest of the Bank.
As discussed during our telephone conversation and in my various
correspondence sent to the Chief Justice of India operations, severance
package is a social stigma for workaholics and no compensation can be
rewarded in lieu of a job.
As mentioned in your appended mail, the various possibilities of re-
deployment would be:
1. NRI Staff Officer position in NI
Since you have explored the option on the NRI position and post discussions
with the concerned Business Manager, I understand that the same is still
under discussion and the business case is likely to be put up for various
approvals in 3-4 weeks time from today. Under the present circumstances at
this point of time, you can only confirm the same once the business case get
approved and the position becomes available in NI, you will consider me for
that role. However, at this point of time, we need to also decide that in case
the above does not happen by end of June 05, the other job option (Customer
Services Manager in a Branch) would need to be re-considered.
2. Customer Services Manager (CSM) in a Branch
This role of CSM was earlier in place at NDH Main only in late 1990s-2000
when there were no Branch Managers and CSM was an executive role
reporting to MPB, looking after the service issues of the branch.
I understand that since NDH and NOI are the flagship branches, the above
role does not mean for these branches. Hence, if given a chance for this role
in the capacity of a Senior Officer Band 1 grade preferred branches would be
South Delhi branches i.e STX/NDB/BLO.
Trust you will appreciate and understand my position to enable me to
sharpen my skills and safeguard the Bank once again during my tenure. As
previously quoted in my mail, the fact is Bank does not penalize any
employee in the past and as is evident from the history of the banking
industry, their dedicated workers have always been treated with due regard
and respect.
Kind regards
Manju
Email dated 5.9.2005 from petitioner to respondent no.2(Ex.WW 1/M-9)
Shishir AGARWAL/HRD
INM/HBAP/HSBC To Manju SAXENA PLB NDH/HBAP/[email protected]
HRD INM/HBAP cc
05/09/2005 12:43 PM Subject as discussed
Phone No.91 22 22681120 Our Ref
Mail Size 32919 Your Ref
Manju
As discussed, pls find enclosed the job specs for the BSV Officer role. In my
opinion this would be an ideal role because it involves reporting/ follow up/
coordination-which you are very good at. As mentioned to you, there would
be some other activities that possibly you will need to learn to perform well
in this role, but I am sure you will be able to do so given the fact how you
adapted yourself for your current role as well.
Let us talk again at around 3 pm today once you have had an opportunity to
look at the details of the new role.
I am confident that with this we should be able to close this long pending
issue.
Best regards
Shishir
Respondent no.2's letter dated 5.9.2005 (Ex.MW1/42)
HSBC Memo
05 Sep 2005 17:28
From: Manju SAXENA/PLB NDH/HBAP/HSBC Tel: 91 11 51592105
Mail Size: 10232
To: Shishir AGARWA/HRD INM/HBAP/HSBC @ HSBC
Cc:
Our Ref. Your ref:
Subject Re: as discussed
Shishir
Thanks for your positive approach towards resolving the long pending issues
amicably.
As discussed, I have the following concerns and wish to clarify my doubts
before stepping-in to a final conclusion:
Ques 1 Since I am a Senior Secretary due to the specialist nature of my job,
if moved to BSV Officer role- what will be the job title and reporting lines
duration/tenure of this role?
During the last three months, we discussed the various possibilities of new
roles in PFS as well. They are:
1.Business Development Officer
Ques2 Is this role still exist?
Ques3 What is the job profile?
Ques 4 What is the reporting structure of this role?
Ques 5 Which is the cluster-NDH/NOI?
2.NRI Officer in NDH for their IBC-
As mentioned in your mail of 30 May05,
QUOTE
"Since I have explored the option on the NRI position and post discussions
with the concerned Business manager, I understand that the same is still
under discussion and the business case is likely to be put up for various
approvals in 3-4 weeks time from today. Under the circumstances at this
point of time, I can only confirm to you that should the business case get
approved and the position becomes available in NI, we will consider you for
that role."
UNQUOTE
The list of foreign nationals entering into India could be obtained from the
Ministry of External/Home Affairs and tapped for business. I have already
done a similar job. In the past while in Merchant/Investment Banking and
the foreign visitors were quite happy with the services offered. Also, the
Foreign Investment Promotion Board (FIPB) under the Ministry of
Industry/Commerce would be able to assist in this regard by giving the list of
foreign collaborators entering businesses into India. These could be a very
good initial business for the bank since major diplomats/bureaucrats are
based in Delhi.
Ques 6 Pls confirm in case there is an opportunity to explore NRI business
in metro cities, particularly NDH by the end of this year 05/early next year
06. The Bank will consider me for this role without any further
formalities/second opinion, although 18 months criteria shall not be met by
me?
Ques 7 My current MPIs was changed to a new role at the beginning of this
year 2005-as discussed, I have updated my eTPM on the various job handled
during the period May-till date as an self-starter, my mid-term appraisal will
be done on the current MPIs is or the same shall be revised once again-if
moved to a new role since 1Q is remaining for this year-end?
Ques 8 The final year appraisal for the year 2005 will be done for the
period Jan-Sep 05 or into two segments- as per the current MPIs/first review
appraisal conducted by the Line Manager? Pls clarify. Would be grateful if
you could send me your confirmation on the above.
Regards
Manju
Email dated 13.9.2005 from respondent no.2 to the petitioner
no.2(Ex.MW 1/48)
Manju SAXENA/PLB To Shishir AGARWAL/HRD INM/HBAP/HSBC @ HSBC
NDH/HBAP/HSBC cc
13/9/2005 01:10 PM subject RE: Your queries
Phone No.91 11 51592105 Our Ref
Mail Size: 0255 Your Ref
Shishir
As discussed on Saturday, I had a 1:1 meeting with Suhas at Noida for
almost 2 hours. The following queries were discussed based on the current
job profile of BSV Officer and a very clear and fair picture was given. Pls
see my detailed comments in blue:
Jobs handled by BSV Officer
Handling Projects
. KYC remediation exercises
Remediation exercises of Trust A/cs are in progress which shall be
completed by end of this year. No further projects in the pipeline for next
year.
Status: completed
. Cost Analysis on Controllable overheads
Status: completed
. Conducting Operational Checks once in a quarter at Delhi & NCR
Branches.
Ongoing -I have been advised that the report which I used to make for
SMNI can be clubbed together.
. Clean up of Advances Overdue Report for Branches Not required - being
sent directly to branches.
. Any other project as been assigned by AM OPS. Eg during current year
BSV Officer had handled one-off projects like analysis of high number of
cheque book duplication series, analysis of common discrepancies in
concurrent audits, etc.
Status: completed
Routine jobs
. Follow up on Concurrent Audit Reports with branches and coordinating
response for NI PLB.
Assistance is being provided to Parag‟s cluster only, as requested by him.
. Follow up with PLB & Corp Banking on responses on INM Compliance
Search lists.
. On behalf of MCB, as and when scam search arises.
. Monitoring complaints & responses pertaining to NI OPS. Handled by
business heads directly.
. Assist AM OPS in coordination of Business Continuity Plan for the Area.
Assistance provided to Parag cluster only.
. To process requests for signature numbers for new joinees. In coordination
with HR on demand for new recruits.
. To regularly update compliance manuals. as when new update is released.
. To assist AM OPS in responses to regulatory authorities like CBI, RBI etc.
drafting letters/ maintaining records.
. Assisting AM OPS in routine operational issues like conducting
departmental meetings etc.
. Collating inputs for local brief from NI OPS team.
. Follow up on CSR initiatives for NI OPS. For Parag cluster NOI.
Jobs as and when arise (not fixed frequency)
Assisting (investigation and follow up) Cluster managers in raising
CIRs and MLSRs. Also, subsequent updates to INM CMP are also
monitored as and when fraud/are found in branches
Follow up on audit implementation post GAI audit being done
centrally
Processing requests to POAs being done by INM.
My current MPIs are more substantial and justified as compared to the above
job profile.
I was advised that since the above MPIs for BSV Officer‟s role is not
substantial, Line Mgr would also add revalidation of voucher checks for
Payments etc to justify the weightage of MPIs, which again may not be
substantial for next year since most of the current jobs handled will be
released to branches. Going forward, with the truncation of clearing due by
the end of this year and RPC Payments centralization/outsourced due next
year, AM OPS NI will not have two departments currently under him i.e.
Clearing and Payments- with the result I will be in the same situation once
again.
This will again come back to an uncertainity of this department resulting to
dismantle of this division, then why I need to be put in such a department
whose fate is not certain?
You have mentioned in your mail of 09Sep05 that my cadre will formally be
converted to Staff Office without any increase in compensation and benefits
with the same Band of 2H, but I understand that I am already designated as a
Staff Officer Band 2H as per the new terms policy of Oct04. Moreover, since
I am a specialist and have very limited knowledge of Banking operations
especially revalidation checks for vouchers in Payments and other
inward/outward remittance, this job may lead to operational losses for the
bank. The job offered should be considered by taking into my skills and
strength of the present job. I was able to sharpen my skills due only to my
hidden talent and experience and always keen to safeguard the bank.
I am extremely disappointed that our HR department does not wish to solve
the issues amicably and once again harassing me to sign the SO agreement
without knowing the factual outcome of the meeting.
Please shishir- I am not able to take more mental harassment and not to be a
part of political play, I am without a Godfather in this organization but the
Power of God is there to protect me and that is the reason why I am still
existing. I am a humble human being who has not caused any harm to any of
my colleagues and expect the same from them without any political
play/gimmick involved.
Regards
Email from the respondent no.2 dated 27.9.2005 (Ex.WW1/M8)
HSBC Memo
27 Sep 2005 11:05
From: Ashish K. SRIVASTAVA/HRD INM/HBAP/HSBC Tel:91 22 22681001
Mail Size: 10025
To: Shishir AGARWAL/HRD INM/HBA/[email protected] HSBC
cc:
Our Ref:
Subject: Fw:Manju Saxena Your Ref:
HSBC Memo
26 Sep 2005 14:55:
From Ashish K SRIVASTAVA/HRD INM/HBAP/HSBC Tel: 91 22 22 681001
Mail Size: 4366
To: Manju SAXENA/PLB NDH/HBAP/HSBC @ HSBC
cc:
Our Ref:
Subject: Fw: Manju Saxena Your Ref.
Manju,
This is further to our discussion on 23.09.2005 during your visit to Mumbai.
As you are aware, your current job became redundant in the month of May
05. Thereafter, we have offered you a severance package and based on your
request, provided you various other suitable redeployment opportunities. I
am aware of the exchange of mails which have happened since.
You will appreciate that the Bank has been trying to provide you with
alternatives, and finally based on your mail written to the CEO, you were
called to Mumbai for a discussion with the undersigned to close this issue.
This is to record that the following were covered in the meeting on 23.09.05:
. You re-iterated the fact that you had taken up a different job than that of a
secretary, since the job became redundant, and provided a copy of your
appraisal which covered the job that you have been doing for the year. You
emphasized the good appraisal that you had received.
. You stated that you are willing to work, and should there be an opportunity,
would work in the Bank rather than take the severance package. However, if
there were no opportunities, you could look at a higher package.
. You were advised that we have provided you both the options and since
you do not seem to be interested in the severance package offered (and which
was not negotiable), we would offer you a job. Accordingly, this is to re-
iterate and confirm to you that we offer you the BSV Officer position based
in Noida reporting to Assistant Manager Operations. As mentioned to you,
this is a regular staff officer job at band 2H. This job is at your current band,
and you had also, in your email dated 5.09.2005, mentioned that you were
comfortable with the job as you had done large part of the offered job earlier
as the secretary to Manager Support Services.
. You were also advised during the conversation that though you have been
doing odd jobs in between, we need to progress this issue immediately since
the Bank cannot have a resource sitting without being assigned a particular
role or being offered a suitable role and not accepting it.
As stated earlier, the Bank, as a fair employer, has offered you a severance
package which is very generous, and has then offered you an alternate
opportunity based on your request. There is a need to work towards resolving
this issue on an urgent basis and I am sure you are also equally keen to close
it immediately.
You are requested to confirm to us about our offer of the above job by end of
day of 28.09.2005.
Regards
Ashish
Email dated 28.9.2005 from the respondent no.2 to the petitioner
(Ex.WW1/45)
Fw: as discussed (Manju SAXENA)
Manju SAXENA/PLB To Ashish K. SRIVASTAVA/HRD/INA
NDH/HBAP/HSBC cc Niall SK BOOKER?CEO INM/HB
28/09/2005 04:45 PM Subject Fw: as discussed
Phone No. 91 22 22681120 Our Ref
Mail Size: 367912 Your Ref.
Ashish
This is with reference to our discussions we have had in Mumbai on
23.09.05. At the said meeting I have expressed my desire to continue to
work in the organization provided my present job portfolio continues to
retain the same level of responsibility, if not more. In the alternative, I had
also indicated that I would accept the severance package provide it is
calculated as per the New Terms offered to me in October 04, in particular
with respect to the inclusion of the Benefit Allowance as part of the Basic
Salary, which is quite reasonable.
You would appreciate that based on the New Terms offered to me in October
04, I had planned my affairs in a manner which look into account the
expected hike in my basic salary on account of payment in terms of Benefit
Allowance over a period of next three years.
For reasons best known to the organization, this has been made a point of
issue with all fairness I had a legitimate expectation that I would receive my
salary as per the New Terms over a period of three years which include the
Benefit Allowance.
It would be fair and reasonable that an organization for which I have given
best of my two decades of my life, that in calculating my severance package
it would do so in accordance with the New Terms offered to me in October
04.
The facts of the case was discussed by way of a brief presentation by the
undersigned and the proof of evidence documented was shown to you. You
have also agreed that this case has not been handled well by our sub-
ordinates in the first instance locally especially due to non-existence of
Regional Head/MPB in the area.
Since you were representing the CEO, I requested you to update Mr. Booker
with a fair minutes of the meeting on as-is-where-is basis but unfortunately
the update seems to be opaque.
. The meeting started with a brief presentation on the job profiles handled
which was changed in the beginning of the year i.e on 31 Jan 05 by setting a
new profile of MPIs in the eTPM by the Regional Head & MPB NI.
. My current job became redundant in May05 and a severance package
without calculating the benefit allowance was offered. Since the package
was not reasonable, various job opportunities in PFS was suggested by me to
HR team viz-a-vis a) Area Coordinator, b) Customer Service Manager,
c)NRI Officer for IBC, d) Event Management, e) Mystery Shopping of
competitor Banks, f) Branch Visits, g) OBAs Surprise Visits.
. You agreed that due to personal intention of some of your team members,
this "power game" was played since this might reflect in their performance
appraisal rating this year especially in absence of the Senior Manager
Northern India and Senior Manager Human Resources. Hence, mental
harassment and torture was provided during the period by putting
tremendous pressure to accept the BSV Officer job which does not suit my
profile.
. You will reiterate the fact that the BSV Officer role was discussed and
issues of concern were raised vide my mail of 13.09.05 with your team
member after meeting Assistant Manager Operations in Noida for 2 hours.
While discussing the detailed job profile, I was advised that the current BSV
Officer asked for a transfer due to non substantial work to enable how to
justify the MPIs during the .... I was also advised that since the MPIs are not
substantial to justify the weightage in eTPMs .... Would also ad revalidation
of vouchers for payments which again may not be substantial for next year
since most of the current jobs shall be released to branches. Going towards
with the truncation of clearing dues by end of this year and RPC Payments
centralization due next year the two departments under AM OPS- clearing
and payments will not exist. This will again come back to an uncertainity of
job for me and I will be in the same situation as I am in today.
. Since the restricting of SMNI& MPB‟s role in Northern India was
announced on 19Nov 04, wherein it was advised that SMN/MPB was very
much looking forward to working much more closely with us over the next 3
years and to build on the extremely strong platform in NI that, together with
the ex-MPB, we had all contributed to building over the last few years.
. The journey was quite tough and not without its challenges, my MPIs were
changed to a new role on 31 Jan 05 by SMNI & MPB NI which includes
additional responsibilities of Monthly Branch Visits for Northern India
including upcountry, Mystery shopping of competitor Banks, follow up and
meeting deadlines on audit and compliance issues, regulatory requirements,
OBA Visits in NCR region, coordination of major/minor/customer delight
and CSR events, the same has been documented in the first interim by the
Line Manager. Pls see my eTPM since you have been marked as one of the
readers of HR team.
. I expressed my concern after three months of discussions on various job
opportunities in PFS which was ideal for my job profile and suits my
candidature, you have come out with an option of BSV Officer/Clearing role
which does not suit my profile and have no knowledge of banking operations
which may lead the bank to operational loss.
. You have also agreed that due to personal likes and dislike I am not been
able to get a suitable role in PFS while the multi-skills were shown in
management style resulting to be saving for the Bank in terms of resources.
We also discussed the concern on hiring personnel for major expansion of
PFS business on double packages being offered what they are currently
getting in their organization. Eg. ABN case/Stan C leading HSBC to a
reputation risk.
. Since you insisted in giving examples of exceptions did by the bank in the
past we shared confidential information and discussed the exception cases for
secretarial cadre in NL. Poonam Garg, Secretary IBI was asked to leave
since she made sexual harassment case internally, being an under-performer
(i.e consistently does not meet the standard of the bank) the housing loan was
write off. Another case of Gita Rajagopalan, HR Secy too being an under-
performer able to get the housing loan waived off.
. You have also threatened me that I may approach to the court of law and
media for filing a case against the bank which was not appreciated by me and
you further advised me that HSBC has 20 odd cases filed in the court at
present and it may not affect the Bank in any case. The case might take
another 20 years for justice by the time I may be assumed DEAD.
. You have agreed that I am not doing any odd jobs in between particularly
since May 05 but initiative taken on the basis of sharing of best practices Pan
India by reducing the workload at Branch Managers to inspect the OBAs in
NCR region through personal surprise visits-focussing and implementating
the control weaknesses, RBI reporting on assessment of customer feedback
at branches, and some routine reports to INM. The same was appreciated by
you verbally.
. You have agreed that based upon the proof of evidence documented and a
"VG" track record, you will discuss the severance package with CEO for
reconsideration a) you have noted the actual figures as shown in the salary
slip and were convinced that the Benefit Allowance is a part of the wages
termed as "salary", b) we discussed the pension and you have agreed that the
amount of pension has been frozen as per the New Terms in October 04 and
the same may be reconsidered. C) you have also asked me the outstanding
loans, which was given and noted by you. d) You have mentioned that the
package is as per the management discretion and a golden hands-shake has
been given to "VG" performers in the past calculating the actual number of
years left with the Banks.
Finally, you advised me that since the CEO was travelling you will discuss
the above a, b, c with him on Monday, 26 Sep 05 and revert back to me by
Wednesday 28 Sep05. Since the CEO has also appreciated my concern to
consider the severance package due to very limited job opportunities.
I await your positive response in anticipation.
Kind regards
Manju
Email dated 29.09.2005 from the respondent no.2 to the petitioner
(Ex.MW1/49)
IN THE COURT OF GROUP CHAIRMAN (Manju SAXENA)
Manju SAXENA/PLB To John BOND/CHM/HGO/HGHO/[email protected] HSBC
NDH/HBAP/HSBC cc
PLB NDH/HBAP Subject APPEAL IN THE COURT OF GROUP CHAIRMAN
29/09/2005 02: 08 PM
Phone No. 911151592105 Our Ref
Mail Size: 383412 Your Ref
Dear Sir
I thank you for the note sent on 15.08.05 by Mr. Connal Rankin, Group
General Manager Human Resources on your behalf.
At the outset I sincerely apologise for making this appeal once again to you
as Group Chairman of the organization, whereas these issues, if handled well
locally, would have been resolved successfully.
I would be highly grateful if you could grant me just 5 minutes of your
valuable time and lead my appended mail which transcribe the history of the
case.
It is not my intention to highlight the non-transparency at Chief Executive
Officer, India Operations especially due to the absence of Regional Head in
Northern India to justify my concern to him but at the same time I have a due
respect for my dynamic leader Mr. Niali Booker. Unfortunately, the update
given to him by his team members seems opaque with the result the actual
facts of this case are not visible.
Sir, it was my endeavour to change the culture of the Bank during my tenure
by mainly focusing on various improvement in customer services at branches
in Northern India through regular Branch Visits, Highlighting the control
weaknesses and implementing them in management style, Mystery Shopping
of Competitor Banks, OBA Surprise Visits so that our customers‟
experienced similar services to what they are accustomed to in a Branch. I
am sure you will agree that OBAs have great significance from a brand and
business perspective. It was my aim to challenge the competitors with "Baat
Citi in every City" in this competitive world. The same was very much
appreciated till May 05 by the Regional Head, being the first initiative taken
by a Secretary Pan-India, recognition was given through thanks award for
improvement in customer services at NDH but unfortunately after the
restructuring took place in May 05, the circumstances were different,
tremendous pressure and mental harassment by HR team was provided
during this difficult period of my life. I was extremely root-shocked at the
time when I was looking to achieve my career ambitions and the entire
circumstances has put me under mental agony and humiliation, which has
been experienced first time during my career with the Bank since 1986.
I once again request you to kindly appreciate my concern from core of my
heart, should the Regional Head was present in the area, these circumstances
would have been different, I regret to advise you that after putting great
efforts, hard work and loyalty shown throughout my career since 1986-
today-the Bank is not concern to give weightage to these qualities which very
few employees have at present. The only proof of evidence for justification I
have at present is the interim review appraisal documented by the Regional
Head on my eTPM.
I am shattered being treated like an "orphanage" in an organization for which
I have given best of my two decades of my life. The only option is to cry but
there is no human being to wipe-off the tears except "my trust in God",
affecting my health day-by-day which might result in a serious issue since I
already have a hormonal hemorrhage in July 05.
It is said for the bank that the senior management officials of INM HR team
are misleading with the options of filing a case against the bank in the court
of law which may take 20 years ahead for justice. Albeit; I am at a very
junior level as compared to them but still I am a loyal, well-cultured,
dedicated senior employee of HSBC who has not only safeguard the Bank
against reputational risk in the past but still found proud to be associated with
HSBC. They should understand that this feeling of "loyalty" has been built
up over the period since I have treated this Bank as my "family" for two
decades of my life, now it is the family‟s responsibility to give due honour
and care for me. I fully appreciate the fact that the Bank has not penalized
any of its employees in the past (even if they were under performers) and as
is evident from the history of HSBC their dedicated workers have always
been treated with high regard.
Since HSBC is a world‟s leading organization known for its renowned
culture in the market industry, I would rather appeal once again and again to
you as Group Chairman of the board of directors of HSBC who not only
changed the culture of the bank for better business prospects but enhanced
productivity by way of recognition and rewards by giving honour and due
respect to its long term employees in the past.
I made a request to the Bank to found an alternative job in Personal Financial
Services where major business expansion are in the pipeline and suits my
managing skills by suggesting various options to formalize the current job
profile. But it is quite disappointed to note that even after three months, the
HR team has come out with a job which does not suit my profile and may
lead the bank to operational losses being a loyal employee whose always
intention is to safeguard the Bank cannot afford to take the reputational risk.
I have no option left but to accept the severance package in the interest of the
Bank.
As confirmed by Senior Manager Human Resources (SMHR) vide his mail
dated 24May05 that due to the „specialist‟ nature of my job, there is no role
of a similar standing of Senior Secretary and no vacancies of this cadre in the
area, I have been compelled to take this route. The separation pacakage
offered due to redundancy of my job in the area was not reasonable, hence,
the HR team advised me that they shall find a suitable role in PFS in due
course. The circumstances were differently placed after SMHR‟s and Senior
Manager Northern India (SMNI) moved.
The severance package does not include the Benefit Allowance whereas the
salary earnings per month states as under:-
BASIC HRA BENEFIT MED LTA
MTHLY MTHLY
19,280.00-Sep05 4800.00 31,000.00 1250.00 2000.00
29,613.00-Oct05
39,946.00-Oct06
50,279.00-Oct07
As per the new terms, the Benefit Allowance will replace current benefit
provision (eg. staff loans etc) and will provide choice to the individual on
where and how they spend their reward. The Benefit Allowance will be
transferred to salary over a three-year period (one-third at a time) on the first
of October 2005, 2006, and 2007 respectively. The Benefit Allowance shall
be transferred to base salary, which will significantly impact cash awards and
bonus payments as well as increase in Provident Fund and Gratuity
payments.
You would appreciate that based on the New Terms offered to me in October
04, I had planned my affairs in a manner which took into account the
expected hike in my basic salary on account of payment in terms of Benefit
Allowance over a period of next three years. For reasons best known to the
organization, this has been made a point of issue with all fairness I had a
legitimate expectation that I would receive my salary as per the New Terms
over a period of three years which include the Benefit Allowance.
Whilst you will note in my appended mail during my meeting with INM, HR
the below three figures were noted by the CEO‟s representative (Ashish
Srivastava) to discuss the same with Mr Niall Booker in re-calculating the
severance package on actual figure as stated in my salary above as per the
New Terms Oct04 on the following basis:
a) To include benefit allowance termed as "Salary" as per the New Terms
offered in Oct04 in the severance package.
b) To write-off the outstanding loans as not an exception but since the same
has been done in the past in the area for the same cadre.
c) Pension- an amount of INR5920.00 has been frozen as per the New Terms
policy-Since this amount is subject to no extra addition or subtraction in the
net amount as per the FAQs of New Terms-even if the employee becomes
entitled for Pension, the same is as per the management discretion. Albeit,
for all fairness since I shall be eligible for this in Apr07, the same amount
may be considered with effect from 07 only and not earlier.
I urge you to kindly intervene in the matter for a fair justice and respect to
your dedicated Senior Lady employee whose name was given as "a diligent
worker once can relied upon with great leadership skills-leading by example
in the area, has been placed in these circumstances today. The actual facts
documented in the New Terms are termed as "negotiation/exception" or a
"higher package" in the severance package by HR team whereas the actual
total package in figure per annum remains the same. I do understand that
since I am working with the financial institution, there is no reason for
negotiation, if the long term relationship which has been retained for two
decades, particularly at the age when my social responsibilities are the
maximum, unexpected restructuring resulting to the job being redundant.
I once again request you to kindly grant me a fair justice and bid farewell
with dignity and pride since I am extremely sentimental for my organization
and shall have a mental satisfaction for being served the organization for two
decades in the years ahead.
Yours truly
Manju Saxena
Employee No.186099
NI Management PFS
India" (underlining added)
6. The aspect that respondent no.2 did not accept the
alternative posts offered to the respondent no.2 by the petitioner is also
clear from para 3.1 of statement of claim filed by the respondent no.2
before the CGITLC, and which reads as under:-
"3.1 During May 2005 Claimant was informed by Management that due
to the reason that services of her officer Ms. Nancy Dickinson, Senior
manager, NLH were dispensed with her post of Sr. Confidential Secretary
became redundant and that her services were to be utilized for the time being
by giving her some other duties as well, but without any additional
remuneration, that Management was trying to locate alternate job(s) and she
would be required to chose any one alternative that was to be offered to her
in the near future and her refusal either to discharge additional functions or
refusal to opt for alternate job would lead to her dismissal. Claimant was
also told that the Management was at liberty to dismiss her with a six month
notice as per agreement she signed. Fear of losing job hanging, she had to
handle additional work take up additional responsibilities. However,
proposals of Management requiring her to choose jobs such as Business
Development Officer, Customer Service Officer, Clearing Officer, Banking
Services Officers, etc. were not acceptable to claimant as such jobs were
either temporary in nature or the claimant not possessing experience or work
knowledge to take up such jobs. She made these aspects clear to the
Management." (underlining added)
7. A reading of the aforesaid correspondence and para 3.1 of
the statement of claim shows that around four posts were offered to the
respondent no.2 by the petitioner and which posts were of Business
Development Officer, Customer Service Officer, Clearing Officer and
Banking Services Officer. All the alternative posts offered to the
respondent no.2 were not below the monetary pay package being
earned by the respondent no.2. Respondent no.2 however expressed
her unwillingness to accept any of the above four posts/job
opportunities. The issue is that whether by refusing to accept the
aforesaid job opportunities, can the respondent no.2 be said to have
abandoned the services, and once there is abandonment of services,
then it would have to be held that there is no illegal termination of
services of the respondent no.2.
8. The respondent no.2 would be justified in refusing to job
offers/posts as given to her by the petitioner firstly if the job in
question was at a lesser monetary emoluments package than the
monetary emoluments package being paid for the post of Senior
Confidential Secretary at which the respondent no.2 was working and
which post got redundant with Ms. Nancy Dikinson leaving her job,
but, this is however admittedly not so. The second reason for refusing
the four posts offered to the respondent no.2 by the petitioner could
have been if the four jobs were such as to cause serious prejudice to the
respondent no.2 i.e a serious legal prejudice. That is also not so
because change of job profile which does not in any manner prejudice
an employee cannot be said to cause a legal prejudice and hence an
employee cannot refuse employment in the alternative jobs offered
once the post to which an employee was working had become
redundant. An employee cannot refuse the alternative post because the
„job profile‟ does not suit the employee. The third reason for the
respondent no.2 to refuse to accept job offers given by the petitioner
would be if the new posts/jobs had required a special technical
qualification/ability. Though Section 25E(i) of the Act does not
specifically apply, inasmuch as the said provision pertains to lay-off
and not retrenchment, yet it is seen that the spirit of this provision will
apply because as per this provision an employee cannot refuse an
alternative employment if the alternative employment does not call for
any special skill or previous experience, and the new job can be done
by the workman, with the fact that the wages or monetary package
being paid to the employee are/is the same in the alternative
employment as were being earlier paid to the workman. None of the
four jobs offered to the respondent no.2 by the petitioner required any
technical qualification of a degree or diploma or any special skill or
previous mandatory experience, and therefore, once monetary
emoluments payable in the new job offered were same or more than
the existing monetary package of the petitioner, and the petitioner
would not suffer any grave legal prejudice with the aspect that there
was no technical qualification or skill required in the new jobs,
consequently, the respondent no.2 was completely unjustified in
refusing to accept the alternative employments given to her by the
petitioner. Once the respondent no.2 deliberately refuses to join
services with the petitioner, she is deemed to have abandoned her job
with the petitioner.
9. The Supreme Court in its judgment in the case of U.P.
State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam
S. Karamchari Sangh (2004) 4 SCC 268 while dealing with the
expression „continuous service‟ under Section 25B of the Act held that
there is continuous service and uninterruptable service only if the
employee does not legally join the work i.e if the employee illegally
refuses to join the work, then, such illegal refusal to join the services
will mean that there is no continuous service. The relevant para of this
judgment is para 21, and which para 21 reads as under:-
"21. Besides the submission that a person on illegal strike does not
abandon his job is erroneous. An illegal "strike" cannot by definition be
"authorised absence". It would be a contradiction in terms. We may also
draw support from Section 25-B which defines "continuous service" as
"uninterrupted service, including service which may be interrupted on
account of sickness or authorised leave or an accident or a strike which is
not illegal , or a lock-out or a cessation of work which is not due to any
fault on the part of the workman". (emphasis supplied)
The specific exclusion of persons on illegal strike plainly means that the
period a person is on illegal strike does not amount to service. Different
considerations would no doubt prevail where the strike is legal, Workers
on strike continue to be in service although they may have ceased work.
If the strike is a legal one such cessation of work or refusal to continue
would be absence authorised by law. Under CSO L-2.12 a presumption is
to be drawn against an employee if such employee is unauthorisedly
absent. Clearly, a person on illegal strike and a person on legal strike are
both "absent', but the absence of the first is unauthorised and the second
is not. ..................."
10. The pre-condition for applicability of Section 25F which
provides the condition precedent to retrenchment of a workman is that
an employee/workman has been in continuous service, and as so
specifically stated in this Section. Therefore, once there is no
continuous service, inasmuch as, the workman/employee had
abandoned the services i.e illegally refused to perform the services by
not joining the alternative jobs/employments offered, therefore,
respondent no.2 having abandoned her services, and there being no
continuous service of the respondent no.2 with the petitioner, hence
there is no illegal termination of services of the respondent no.2 by the
petitioner. It is therefore held that the respondent no.2 had abandoned
her services with the petitioner and hence there does not arise an issue
of respondent no.2‟s services being illegally terminated by the
petitioner.
11. Now let us assume that the respondent no.2 did not
abandon her services with the petitioner, and in which case before a
valid retrenchment is effected, the provision of Section 25F will have
to be complied with so that retrenchment is a legal retrenchment.
Section 25F of the Act reads as under:-
"Section 25F. Conditions precedent to retrenchment of workmen.-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."
12. There are three sub-sections of Section 25F and the third
sub-section pertaining to giving of notice is not a mandatory
requirement and it is only a directory requirement as held by the
Supreme Court in the case of Pramod Jha and Others Vs. State of
Bihar and Others (2003) 4 SCC 619. The relevant para 11 of this
judgment reads as under:-
"11. Compliance with clauses (a) and (b) of Section 25-F strictly as per
the requirement of the provision is mandatory. However, compliance with
clause (c) is directory, as held in Gurmail Singh v. State of Punjab and a
substantial compliance would be enough."
13. (i) We have to therefore see that whether the provision of
sub-sections (a) and (b) of Section 25F had been complied with by the
petitioner while terminating the services of the respondent no.2.
(ii) The monetary package which has been given to the petitioner at
the time of termination of her services is that which is stated by the
petitioner in the termination letter/order dated 1.10.2005. Respondent
no.2‟s account was credited with a sum of Rs.8,17,071/-. This
monetary emolument package is on the basis of six months notice
instead of one month notice under Section 25F(a) of the Act, and also
that for every year of service already performed the respondent no.2
was paid 15 days of her pay/monetary emoluments. In fact, I may note
that the requirement of Section 25F(b) is 15 days average pay for each
year of service performed by the respondent no.2 with the petitioner,
however the petitioner has liberally instead calculated 15 days pay not
at an average pay of the years of service of the respondent no.2 with
the petitioner, but the 15 days pay is of the last and the highest pay
drawn by the respondent no.2 from the petitioner. Yearly monetary
package payable to respondent no.2 w.e.f 1.10.2004 was as under:-
"Manju Saxena
Cost Centre: 5101000
Employer Number: 186099
City/Zone: New Delhi/ZONE 2
Erstwhile Grade: CFS, CSS
Band wef 01 October 2004: SO BAND 2
Internal Title: SENIOR CONFIDENTIAL SECRETARY
Your rewards package under New Terms is detailed below:
EARNING HEAD AMOUNT (INR p.a.)
Salary 231,360.00
General Allowance 96,600.00
-HRA 57,600.00
-LTA 24,000.00
-Medical 15,000.00
Benefit Allowance 373,000.00
TOTAL CASH 699,960.00
Provident Fund 23,136.00
Gratuity 9,640.00
TOTAL REWARDS (less 732,736.00
bonus)
Bonus 48,2000.00
Notes:
1. Salary shown above is your base salary as on 31 August 2004.
Henceforth, this will be referred to as "salary" only.
2. Amount shown under Gratuity above is @ ½ month salary (as per
Gratuity Act). Please note that your gratuity under the Bank‟s scheme is
frozen at INR 347,040.00. Refer Annexure A, for further details.
3. Illustrative Bonus amount shown above is based on the 2004 bonus
„pot‟ of 2.5 months salary. This is INR 48,200.00. Please see Annexure A,
for further details.
NB: Your monthly pension at the time of retirement has been frozen at INR
5,920.00 under the Banks Defined Benefit Pension Scheme. Final frozen
amount subject to change based on actual date of conversion. This will be
advised to you on take up of New Terms."
(iii) Respondent no.2 could not dispute by any worthwhile argument
the fact that the monetary package given to her of Rs.8,17,071/- would
cover not only one month‟s notice pay but also 15 days pay for every
year of service of the respondent no.2 with the petitioner. In fact the
amount of Rs.8,17,071/- is much above the amount which the
respondent no.2 was entitled to under sub-sections(a) and (b) of
Section 25F of the Act. It is therefore held that petitioner has rightly
and legally retrenched the respondent no.2, and which conclusion is by
proceeding on the basis that the respondent no.2 has not abandoned her
services with the petitioner whereas the fact of the matter is that the
respondent no.2 had abandoned her services with the petitioner, and as
discussed in detail while deciding first head of arguments stated above.
14. Respondent no.2 who argued her case in person basically
argued that she was a very sincere and hard working officer, that she
while performing her duties with the petitioner had gone out of the way
and performed her duties much beyond the call of her ordinary duties,
that she was regularly praised by the higher officers of the petitioner,
petitioner is acting maliciously and vindictively against her, that she
needs to vindicate her honour which has been tarnished on account of
her termination of services by the petitioner, that Ms. Nancy Dickinson
has after about 5/6 years again joined back the petitioner company and
hence the petitioner should re-employ the respondent no.2 etc etc,
however, all these arguments raised by the respondent no.2 have no
bearing and cannot dislodge the discussion and conclusions given on
the two aspects of abandonment of services by the respondent no.2 and
the fact that requirements of Section 25F have been validly complied
with by the petitioner. Therefore, once none of the arguments urged on
behalf of the respondent no.2 can in any manner set aside the
conclusions of the respondent no.2 having abandoned her services and
that petitioner had duly complied with the requirements of Section 25F,
none of these arguments urged by the respondent no.2 are at all
relevant or would have any bearing, and are therefore rejected.
15. I may note that during the course of hearing, and after
hearing the submissions of the petitioner as regards the two aspects
which have been decided in favour of the petitioner, a suggestion was
floated for the respondent no.2 to receive the amounts already received
by her from the petitioner not only for the retrenchment but also
additional amounts given to respondent no.2 by the petitioner on
account of respondent no.2 succeeding before the CGITLC, yet
respondent no.2 was not interested in compromise by receiving the
amount already received by her in full and final satisfaction. It bears
note that it is not as if the respondent no.2 was being paid only an
amount around Rs.9 lacs, inasmuch as the respondent no.2 has till date
received a very very huge amount of Rs.1,07,73,736/- from the
petitioner, and which is around 13/14 times the legal entitlement of the
respondent no.2, yet for some reason the respondent no.2 refuses to
budge and accept this gargantuan amount in full and final settlement of
the compensation entitlement. The details with respect to amount of
Rs.1,07,73,736/- are as under:-
"1. Towards notice period 1,77,684
2. Severance Pay 6,39,387/-
3. Gratuity 3,81,209/-
4. Paid Towards back wages 8,00,000/-
pursuant to execution
5. Paid towards interim Award 33,19,096/-
6. Paid in compliance of Section 54,56,360/-
17-B
Total 1,07,73,736/-
16. In view of the aforesaid discussion, the impugned Awards
dated 1.6.2009 and 15.7.2015 are set aside. It is also held that
respondent no.2 had abandoned her services with the petitioner and
hence there was no illegal termination of her services by the petitioner.
Even assuming for the sake of arguments that respondent no.2 was a
workman whose services had to be retrenched only on compliance of
the requirements of Section 25F, in such a case, the petitioner is found
to have complied with the legal requirements inasmuch as the
monetary package paid to the respondent no.2 by the petitioner is such
that it is in fact more than the total amounts which are payable to the
respondent no.2 under sub-sections (a) and (b) of Section 25F of the
Act. Writ petition is accordingly allowed and disposed of. Since the
respondent no.2 has received the amounts from the petitioner much
beyond her legal entitlement, all such amounts which are received by
the respondent no.2 from the petitioner in excess of Rs.8,17,071/- are
bound to be restituted by the respondent no.2 to the petitioner and
petitioner can take necessary proceedings for restitution in accordance
with law.
APRIL 12, 2017 VALMIKI J. MEHTA, J
ib/Ne
