Tag Archives: dismissal

Termination Order – Superseded by a less severe punishment

When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination.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

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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Filed under departmental and criminal proceedings, Uncategorized

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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Filed under Dismissal of Services, Employment Law, Uncategorized

Departmental Enquiry-Reasonable Opportunity

In cases where there is no oral evidence adduced and documentary evidence is not proved or exhibited by witnesses, it cannot be read into evidence for proving guilt of the employee. It is for this reason that many unscrupulous employer/establishment/department fabricate documents for proving charge against innocent employee and punish him without proving the same, thus denying a reasonable opportunity to him to defend himself. Sita Ram v. State of U.P., 2015 (1) ESC 178.

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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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Dismissal from service – Reasonable Opportunity

In a recent judgment of the Allahabad High Court in Ram Badan Chauhan v. Regional Administrative Committee, the term “Reasonable opportunity” in dismissing an employee from service was explained as under:

‘Reasonable opportunity would mean an opportunity which is to be given to the delinquent official to explain his conduct regarding the allegations leveled against him and also includes the manner in which the proceedings have been conducted. In this behalf, he is required to be provided both the inquiry report, copy of the proceedings in order to question the said inquiry. Appointing authority is required to examine the explanation of the delinquent official both on the manner in which inquiry has been conducted as also in respect to the punishment proposed by him. The proposed opinion framed by the appointing authority on the basis of an inquiry report is required to be reassessed and reviewed after the explanation is submitted by the delinquent official. This in essence is the requirement of rule as also based upon principle of providing reasonable opportunity to the delinquent official. “

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Filed under Dismissal of an employee, Employment Law