Tag Archives: dismissal

Management Shall Not Dismiss Any Teacher – Without Approval By The Board

Section 21 of U.P. Secondary Education Service Selection Board Act, 1982 provides that the management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period whether temporarily or permanently and any such thing done without such prior approval shall be void.

Section 21 of the U.P. Secondary Education Service Selection Board Act, 1982, has also been similarly interpreted by the Court in Hem Lata Agrawal v. District Inspector of Schools, 2003 (2) AWC 939. It was held as under: “The question whether the reversion of a teacher, who was appointed on temporary adhoc basis as Principal under Section 18 of the Act would amount to reduction in rank so as to require approval of the Board need not be considered here as whether or not it is a reduction in rank, it is clear that it amounts to reduction of emoluments. The petitioner is entitled to the salary for the post of Principal and reverting her, as a Lecturer would undoubtedly affect the emoluments to which she is entitled. The language of Section 21 of the Act is wide enough to cover within its scope the order impugned in this writ petition.”…. Kapil Deo Prasad V. Joint Director of Education 7th Region Gorakhpur, Writ – A No. – 442 of 2020, decided on 05.03.2020

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Departmental Enquiries – Cannot be Treated As A Casual Exercise

When a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be totally unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.

        In Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, it was 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 proceeding. No 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.” Ram Prakash Pal v. Chairman, 2018 (4) AWC 3952.

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Termination of – Part Time Employee

In B.T. Krishnamurthy v. Sri Basaveswara Education Society, 2013 (137) FLR 689 it was held as under:

    “The Tribunal completely misdirected itself in passing such an order of regularization and reinstatement in a case where the Respondent allegedly worked in the College as a part-time Lecturer without any appointment letter and without any selection process. Since the society never issued any letter of appointment, a letter of termination was also not served upon the Respondent.

    In the absence of any appointment letter issued in favour of the Respondent as he was temporary/part time lecturer in the college, there cannot be any legitimate expectation for his continuing in the service.” Zila Basic Shiksha Adhikari v. Seeta Ram, 2018 (159) FLR 952.

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Retrenchment Compensation – Condition Precedent

As per Section 25-F(b) of the Industrial Disputes Act, a workman is required to be paid retrenchment compensation equivalent to 15 days of average pay of every completed year of continuous service or in part thereof in excess of six months at the time of retrenchment. It is clear from the plain reading of aforesaid provision that requirement prescribed under sub-sections (a) and (b) is condition precedent to retrenchment and failure, if any, to comply with the same, would render the retrenchment invalid and inoperative.         Hon’ble Apex Court in National Iron and Steel Company Ltd. v. State of West Bengal, 1967 (14) FLR has dealt with a situation wherein, employer while issuing notice dated 15.11.1958 under Section 25 of the Industrial Disputes Act directed the workman to collect retrenchment compensation on November 20 or thereafter. The Hon’ble Apex Court held that manifestly the provisions of Section 25-F of the Industrial Disputes Act had not been complied and as such, termination in violation of the same deserves to be quashed and set aside. Executive Officer v. Anil Kumar, 2019 (163) FLR 299.

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Abandonment and Termination – Are Both Positive Acts

Abandonment and Termination are both positive acts, with the former requiring positive intent, on the part of the workman, not to work, and the latter requiring positive intent, on the part of the management, not to allow the workman to work. Requisite animus is the sine qua non in either case. There is, however, the subtle jurisprudential distinction between termination (at the instance of the employer) and abandonment, in that, in the former case, it would always be possible for the employer to unequivocally indicate, to the employee, that his services were no longer required and, therefore, that they stood “terminated”, whereas, in the latter case, often, the intention not to continue working for the employer has to be presumed from the conduct of the employee. It is only for this reason that a jural concept of “deemed abandonment” has evolved over a period of time. In Engineers India Ltd. v. Labour Court, (2018) 2 LLJ 442, examined the concept of “abandonment”, and the law that has evolved, by various pronouncements of the Supreme Court in that regard. Certain guiding principles on the issue of abandonment as culled out in Engineers India Ltd. v. Labour Court, (2018) 2 LLJ 442 are as under:

  • Intention, or animus, to abandon, is the necessary sine qua non, for any case of abandonment to be said to exist. In the absence of intention, there is no abandonment.
  • Whether the intention to abandon exists, or not, is a question of fact, to be determined in each case.
  • Termination, or removal from service, is a positive act of the employer, per contra, abandonment is a positive act of the employee.
  • Any evidence, to indicate that the employee or workman, desired to join duty, but was prevented from doing so, would, by itself, militate against any presumption of “abandonment”.

In each case, the onus, to prove the termination, or abandonment, had taken place, would be on the party so contending. Dev Narayan v. Management, 2018 (158) FLR 255.

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Exceptions – From Holding An Inquiry

Clause (1) of Article 311 of the Constitution of India states that persons employed in civil services or posts under the Union or the States or members of the All India Service shall not be dismissed, removed or reduced in rank by an authority subordinate to that by which he/she was appointed. Clause (2) provides that such a person could be dismissed or removed or reduced in rank only after an inquiry in which he has been informed of the charges against him and after being afforded a reasonable opportunity of being heard in respect of those charges. The second proviso incorporates exceptions when the need for holding an inquiry under clause (2) can be dispensed with. Clause (b) of the Second Proviso to Article 311(2) can be invoked to impose a punishment of dismissal, removal or reduction in rank on the satisfaction, to be recorded in writing, that it is not reasonably practicable to conduct an inquiry before imposing the punishment. The Hon’ble Apex Court in Jaswant Singh v. State of Punjab, (1991)1 SCC 362, relying on an earlier decision in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, has affirmatively held that the obligation of the competent authority to record reasons when passing an order under clause (b) to the second proviso to Article 311(2) is mandatory, and it was inter alia observed:

        “It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by Respondent No. 3 in the impugned order. Clause (b) of the Second Proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before that it is not reasonable practicable to hold a departmental enquiry. It was observed as under: “A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the Government servant is weak and must fail.” Hari Niwas Gupta v. State of Bihar, (2020) 3 SCC 153.

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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.        

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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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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.

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Communication of Order of Dismissal

In State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 it was held that mere passing of an order of dismissal or termination would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passes an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case on a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. The order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that mere passing of order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise.

In Union of India v. Dinanath Shantaram Karekar, (1998) 7 SCC 569 it was held as under:

“Where the services are terminated, the status of the delinquent as a Government Servant comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated.” Dulu Devi v. State of Assam, (2016) 1 SCC 622.

 

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