Category Archives: Employment Law

Exercise of Discretion by Selection Committee – In Matter of Recruitment

Law is settled that exercise of discretion by the selection committee, in the matter of recruitment, is not required to be interfered with by the Courts, unless it is found contrary to the rules or is otherwise arbitrary or suffers from malafide. The Hon’ble Apex Court in Union Public Service Commission v. M. Sathiya Priya, (2018) 15 SCC 796, has observed as under:

“This Court has repeatedly observed and concluded that the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The Courts cannot sit as an appellate authority or an umpire to examine the recommendations of the Selection Committee like a Court of Appeal. This discretion has been given to the Selection Committee only, and the Courts rarely sits as a Court of Appeal to examine the selection of a candidate; nor is it the business of the Court to examine each candidate and record its opinion. Since the Selection Committee constituted by the UPSC is manned by experts in the field, we have to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness.” Lokendra Kumar Tiwari v. Union of India, 2019 (2) ESC 712.

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Parity in Pay Scales – Equation of Posts

Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts, it was held in SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122,  as under:

“the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.”

 It was held in Union of India v. P.K. Roy, AIR 1968 SC 850 that the following factors had been held to be determinative for considering the equation of posts,:

1. The nature and duties of a post;

2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;

3. The minimum qualifications, if any, prescribed for recruitment to the post; and

4. The salary of the post.

After referring to Union of India v. P.K. Roy, AIR 1968 SC 850,  the Hon’ble Apex Court, in  SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122, held as under:

25. In  State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130 and  L.N. Mithila University v. Dayanand Jha, (1986) 3 SCC 7, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in  E.P. Royappa v. State of T.N., (1974) 4 SCC 3 Rooplal v. Lt. Governor, (2000) 1 SCC 644, wherein the Hon’ble Apex Court following the earlier judgment in  Union of India v. P.K. Roy, AIR 1968 SC 850 held that the salary of the post alone may not be a determining factor, the other three criteria should also be fulfilled.” Punjab SEB v. Thana Singh, (2019) 4 SCC 113.

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Conditions of Service – Governed by Statute

In the cases where the appointment and conditions of service are governed by statute, the relationship is that of status and not merely a contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant. In such cases, where the contract of service is not governed by statutory provisions, it is well settled that contract of service cannot be enforced by seeking reinstatement or continuance in employment since such a relief is barred under the Specific Relief Act. In Executive Committee of U.P. State Warehousing Corporation v. C.K. Tyagi, AIR 1970 SC 1244 it was held as under:

        “Under the common law the court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker whom he does not desire to employ, is recognized. The courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by statute.

        The position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well recognized exceptions to this rule and they are: to grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311 (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A staturoy body when it has acted in breach of a mandatory obligation, imposed by statute.” Ram Prasad v. State of U.P., 2019 (135) ALR 1.

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Back Wages – Conduct of Concerned Workman

The Hon’ble Supreme Court in Novartis India Ltd. v. State of West Bengal, reported in (2009) 3 SCC 124, has held that merely because the dismissal from service has been held to be illegal would not result in automatic payment of back wages and the conduct of the concerned workman would also have to be examined. It was held as under:

            “There can, however, be no doubt whatsoever that there has been a shift in the approach of the Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. The burden of proof that he remained unemployed would be on the workman keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. The Hon’ble Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment etc.

            It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right. M/s Rathi Udyog Ltd. v. Presiding Officer, (2019) 2 UPLBEC 1093.

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Work Charged Establishment

A work charged establishment broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to “work”. The pay and allowances of employees who are borne on a work charged establishment are generally shown as a separate sub-head of the estimated cost of the work.     

        The work charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose for which they are employed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Schemes.

        But  though the work charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of the provisions contained in the Industrial Disputes Act.

        In State of Rajasthan v. Kunji Raman, AIR 1997 SC 693, again, relying upon the decision in the case of Jaswant Singh v. Union of India, AIR 1980 SC 115 held that a work charged establishment is materially and qualitatively different from a regular establishment and the employees engaged in a work charged establishment are recruited differently and have different service conditions. It was therefore held by the Hon’ble Supreme Court that a work charged establishment is a separate class and no parity could be drawn between a work charged employee and an employee of a regular establishment. Mobina Khatoon v. State of Bihar, 2019 (2) ESC 570.

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Moral Turpitude – Meaning of

Moral Turpitude as defined in the Black’s Law Dictionary is as follows:

“The act of baseness, vileness, or the depravity in the private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man.”

“Implies something immoral in itself regardless of it being punishable by law”; restricted to the gravest offences, consisting of felonies, infamous crimes and those that are malum in se and disclose a depraved mind.”

According to Bouvier’s Law Dictionary, ‘Moral Turpitude’ is:

        “An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in     general, contrary to the accepted and customary rule of right and duty between man and man.”?

        Burton Legal Thesaurus defines ‘Moral Turpitude’ as :

        “Bad faith, bad repute, corruption, defilement, delinquency, discredit, dishonor, shame, guilt, knavery, misdoing, perversion, shame, ice, wrong.”

       The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are :- the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society. (Jorabhai Hirabhai Rabari v. District Development Officer, Mehsana, AIR 1996 Guj 3) According to the National Incident – Based Reporting System (NIBRS), a crime data collection system used in the United States of America, each offence belongs to one of the three categories which are: crimes against persons, crimes against property, and crimes against society. Crimes against persons include murder, rape, and assault where the victims are always individuals. The object of crimes against property, for example, robbery and burglary is to obtain money, property, or some other benefits. Crimes against society for example gambling, prostitution, and drug violations, represent society’s prohibition against engaging in certain types of activities. Conviction of any alien of a crime involving moral turpitude is a ground for deportation under the Immigration Law in the United States of America. To qualify as a crime involving moral turpitude for such purpose, it requires both reprehensible conduct and scienter, whether with specific intent, deliberateness, willfulness or recklessness, Cristoval Silva – Trevina 241 & N Dec 687 (AG 2008). State Bank of India v. P. Soupramaniane, 2019 (2) ESC 344.

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Inter Se Suitability

In English parlance, the word “suitable” is assigned the meaning as “appropriate, fitted for the purpose or acceptable”. Concise Oxford Dictionary defines the word “suitable” as “well fitted for the purpose; appropriate”. This ordinary meaning is to be given effect to as a general guide, unless this expression is given special meaning in a statute or rule in administrative instructions. In R. (Quintavalle) v. Human Fertilisation and Embryology Authority, (2005) 2 AC 561 : (2005) 2 WLR 1061 : 2005 UKHL 28, the House of Lords remarked that “the word “suitability” is an empty vessel which is filled with meaning by context and background”.

In service jurisprudence, where the word “suitable” is normally examined from the point of view as to whether a particular person is suitable to hold a particular post, it is construed as “fit” to hold that post. It would mean that the job profile and job requirement of a particular post would be seen and then, going by the calibre, competence, attributes, skill and experience of the candidate, it would be ascertained as to whether such a person would be able to discharge the duties of the post i.e. whether he is suited to carry out the functions of the post, to the satisfaction of his employer.

The prefix “inter se” has also to be given some meaning as it cannot be rendered otiose. Therefore, whereas while assessing “suitability”, it has to be seen that a particular officer is not unfit for the post, when it comes to “inter se suitability”, it has reference to assessing the suitability of all eligible officers and thereafter finding who is more suitable to occupy such a post. Union of India v. Manomoy Ganguly, (2018) 9 SCC 65.

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