Tag Archives: termination

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.

Advertisements

Leave a comment

Filed under Conditions of Service, Employment Law

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.

Leave a comment

Filed under Back Wages, Employment Law

Major Punishment – Examination of Witnesses

In Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541, it was held as under:

          “The Court also held that in the enquiry witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross – examine these witnesses and to lead evidence in his defense. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in ACC Ltd. v. Their Workmen, 1963 (7) FLR 269, and in Tata Oil Mills Co. Ltd. v. Their Workmen, 1963 (6) FLR 257.

          Even if the employee refuses to participate in the enquiry, the employer cannot straightaway dismiss him, but he must hold an ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, 1961 (3) FLR 524 and Uma Shanker v. Registrar, 1992 (65) FLR 674.

          Hon’ble Supreme Court in Roop Singh Negi v. Punjab National Bank, 2009 (120) FLR 610, held as under:

          “Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding  upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceedings. Not witness was examined to prove the said documents. The management witnesses merely tendered, the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.”

          Similar view has been taken in Sohan Lal v. U.P. Co-operative Federation Ltd., 2013 (139) FLR 723:

          “The principle of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.

          From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed, the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case, no witness was examined to prove the documents in the proceedings.

          It is trite law that the departmental proceedings are quasi-judicial proceedings. The Inquiry Officer functions as quasi-judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visits serious consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in the enquiry, the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment, then the oral evidence by producing the witnesses is necessary.” Lalta Prasad v. State of U.P., 2019 (161) FLR 183.        

Leave a comment

Filed under Major Punishment

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.

Leave a comment

Filed under Employment Law, Termination Order

Industrial Dispute – Meaning of

The term “industrial dispute” connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression “dispute or difference” as used in the definition given under section 2(k) of the Industrial Disputes Act, 1947, therefore, means a controversy fairly definite and of real substance, connected with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.

To understand the meaning of the word “dispute”, it would be appropriate to start with the grammatical or dictionary meaning of the term:

“Dispute.—to argue about, to contend for, to oppose by argument, to call in question—to argue or debate (with, about or over)—a contest with words; an argument; a debate; a quarrel;”

Black’s Law Dictionary, 5th Edition, P. 424 defines “dispute” as under:

“Dispute.—A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined and in relation to which jurors are called and witness examined.”

Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Henc an “industrial dispute” cannot be said to exist until and unless the demand is made by the workman and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant. Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1.

Leave a comment

Filed under Industrial Dispute - Meaning of, Uncategorized

Departmental and Criminal Proceedings – Are Different

The law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delionquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal by the Trial Court, therefore, does not ipso facto, absolve the employee from the liability under the disciplinary jurisdiction. Om Prakash Singh v. State Bank of India, 2016 (150) FLR 939.

Leave a comment

Filed under departmental and criminal proceedings, Uncategorized

Employment Law – Double Jeopardy

The concept of double jeopardy, to some extent, is allergic to service law. The Supreme Court has made it clear in as many cases as one can think of (a) that imposition of a punishment and the denial of promotion did not amount to double jeopardy and (b) that the conviction by a criminal court and the disciplinary proceedings initiated on the basis of conduct which led to the conviction or on pure questions of misconduct, did not amount to double jeopardy. Reference in this regard may be had to a Full Bench judgment of the Madras High Court reported in the case of Manikandan and others v. Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai and Others, (2008) 2 MLJ 1203.

In the case of R. Viswan v. Union of India, (1983) 3 SCC 401, the issue of double jeopardy was discussed and in that case Government servant was punished for the same misconduct both under the Army Act as well as under Central Government Rules, and it was held that, two proceedings under the army Act and the Central Government Rules operate in two different fields though the crime or the misconduct might arise out of one and the same Act. The Martial Court proceedings deals with the penal aspect of misconduct while proceedings under the Central Government Rules deals with disciplinary proceedings in respect of the misconduct. Therefore, it was held that it does not amount to double jeopardy. Dashrath Singh v. Andhra Bank, 2016 (150) FLR 540.

 

Leave a comment

Filed under double jeopardy, Uncategorized