Tag Archives: removal

Termination Order – Superseded by a less severe punishment

When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination. As held by the Hon’ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others, (2013) 10 SCC 324, ‘reinstatement’ would mean putting the workman back to the stage when he was terminated. On such reinstatement, the punishment of removal gets substituted by the punishment of withholding of three annual increments for three years with cumulative effect.
As per shorter Oxford English Dictionary, Vol. 2, 3rd Edition, the word reinstate means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in a former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state.
As per Black’s Law Dictionary, 6th Edition, “reinstatement” means: “The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer”. B.S. Raju v. A.P.S.R.T.C., 2017 (152) FLR 832.

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Filed under Employment Law, Termination Order

Disciplinary Proceedings – Against a Retired Employee

In Anant R. Kulkarni v. Y.P. Education Society, 2013 (138) FLR 168 (SC), the Hon’ble Apex Court considered the question as to whether continuation of departmental enquiry is permissible against a retired employee, wherein it was held that enquiry against a retired employee is subject to the statutory rules, which governs the terms and conditions of his service. If the inquiry was initiated while the delinquent employee was in service, it would continue even after his retirement but, nature of punishment would be limited to certain extent and accordingly, punishment of dismissal or removal of the employee from service cannot be imposed on the retired employee. The Hon’ble Supreme Court has categorically ruled that in the absence of any statutory power conferred on the management, to hold a fresh enquiry after the retirement, no such enquiry against the employee could be conducted. In the aforesaid decision, the Apex Court has decided the issue thus:
“Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed. S. Andiyannan v. Joint Registrar, Co-operative Societies, 2015 (146) FLR 1079 (FB).

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Filed under Departmental Enquiry, Retired Employee

Loss of Pay – Based on Principle of “No Pay No Work”

Loss of pay is based on the principle of “no pay no work”. It is an action quite separate and distinct from a disciplinary proceeding, which may visit an employee for such misconduct. In State of U.P. v. Madhav Prasad Sharma, 2011 (2) SCC 212, the Apex Court was considering the question whether the employer who had already sanctioned the leave, albeit without pay, was justified in terminating the service for the same charge and whether such an action is hit by the doctrine of double jeopardy. The Apex court after noticing the relevant statutory service rules concluded by holding that leave without pay is not a punishment prescribed under the rules and thus, denial of salary on the ground of “no pay now work” cannot be treated as a penalty nor the doctrine of double jeopardy would be attracted in case the employee is inflicted with the punishment of dismissal for the same charge. Purvanchal Bank v. Umesh Prasad Gupta, 2015 (3) ESC 1317.

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Departmental Enquiry against a Retired Employee

In a recent Judgment of the Lucknow Bench of the Allahabad High Court it was held as under:
“A retired employee who is no longer in service cannot be inflicted any punishment of dismissal or removal from service, reversion or reduction in rank and stoppage of increments etc. It is only by virtue of specific rule permitting imposition of punishment after retirement that the appointing authority can do so and if necessary after taking leave of the authority concerned. This logically means that when a retired employee cannot be punished as aforesaid there is no point in continuing a departmental enquiry against him once he has been superannuated.” Shiv Ram Verma v. U.P. Co-operative Union Ltd., 2013 (6) AWC 5908.

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Filed under Employment Law, Retired Employee