Case 1: Refusal of paternity leave threatens right to life of the child
On August 21, while granting relief to a State Police officer against whom a 'desertion' order was passed by his department on account of his absence from service (as he has to take care of his wife who was expecting a child), the Madras High Court has emphasised the need for paternity leave legislation in India.
The exhortation couldn’t have come at a better time. With both husbands and wives working, it is all the more necessary to usher in the practice of paternity leave widely prevalent in progressive democracies in the West. The Madras High Court has done well to dovetail the case for this healthy practice with the fundamental right to life of the child guaranteed by Article 21 of the Indian Constitution.
An infant requires care both during its prenatal and postnatal days for proper nourishment and upbringing. While India has done well to increase the maternity leave to six months, it should also bring suitable legislation to enjoin the father of the child to assume responsibilities towards the infant.
While bearing and delivering a child is cast upon the mother by nature, a father simply cannot be let off without doing his part in the development and rearing of a child. Incidentally, the bonding developed during the care bestowed on the child would be conducive to building family solidarity as well.
Case 2: Mortgage by conditional sale cannot be left to be inferred
The Supreme Court recently upheld the verdict of the Karnataka High Court that refused to come to the rescue of the supposed mortgagor of a property who naively believed that by entering into two agreements —back-to-back sale and buyback on repayment of the loan — he would wrest back his property on full repayment of the loan.
The Supreme Court made a threadbare analysis of the relevant portions of the Transfer of Property Act and pointed out that the sale document itself must make it clear that on the repayment of loan, the buyer will have to sell it back to the original owner who had borrowed on the strength of the property or his legal heirs. In the absence of a buyback clause in the sale agreement, such an intention cannot be inferred even by harking back to the second agreement conferring the buyback right on the mortgagor.
In this regard it would be useful to adumbrate what home loan companies and banks do. They do not insist on sale but only insist on deposit of title deeds with them during the currency of the home loan. That the title deeds have been deposited with the bank or home loan company is itself sanctified by a separate document protecting the lender so that during the currency of the mortgage, the borrower is not able to sell the mortgage property. In other words, the home loan company does not get possession of the mortgage-property but gets the possession of the documents of title to the mortgage-property.
But when private people lend money, they are going to insist on sale followed by buyback to guard their interests more fully. The borrower must be on guard and insist upon the sale deed containing a buyback clause in his favor.
Case 3: On resignation one cannot claim leave encashment as a matter of right
In National Insurance Co. Ltd. & Others vs S. Sudeep Kumar, the Kerala High Court recently disabused the smug notion that leave encashment is there for the asking for resignation. The High Court rightly pointed out that such a presumption cannot be made unless the terms of employment and service rules granted the resigning employee such a right. National Insurance Company rightly and successfully contented that while its retiring employees were conferred the right to cash in their privilege or earned leave, no such right was conferred on employees resigning.
The moral of the story is those intending to resign would read the service rules carefully and not go by self-serving assumptions. If the terms of service do not give them the right to encash leave, it would be advisedly better for them to avail of the leave before resigning. It is possible that the terms of service may vest the management with the discretion to give leave encashment benefit also on resignation but experience shows that resignation often is in a huff and it creates bad blood between the employer and the employee and the former is not likely to be kindly disposed towards the resigning employee
—This column, Legal Digest, interprets various case verdicts or procedures and their implications in the current social and business scenario. The author, S Murlidharan, is a CA by qualification, and writes on economic issues, fiscal and commercial laws. The views expressed are personal.
(Edited by : C H Unnikrishnan)
First Published: Sept 4, 2023 8:19 AM IST
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