Tag Archives: employee

Candidate in the Selection Process – Only Accepts the Prescribed Procedure and Not the Illegality

Dr. (Major) Meeta Sahai v. State of Bihar; 2019 SCC OnLine SC 1632, Hon’ble Supreme Court has held as under: “However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” Mohan Lal Yaduwanshi v. State of U.P, Service Bench No. – 18370 of 2019, decided on January 13, 2020

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Pendency of Judicial Proceedings – Does Not Confer A Right to Withhold Pension

A Division Bench of the Hon’ble Allahabad High Court in State of U.P. v. Faini Singh, Special Appeal No. 416 of 2014 decided on 25.04.2014, while considering the provisions of Regulation 919 A (3) of Civil Service Regulations observed that the power of withholding or withdrawing pension is to be used in cases where allegations are of serious nature or grave misconduct and of causing pecuniary loss and it cannot be exercised mechanically merely on the pendency of any judicial proceedings without considering the allegations against the retired Government Servant. In other words, pendency of even judicial proceedings has not been recognized as a matter of right to withhold the pension.

        In Bangali Babu Misra v. State of U.P., 2003 (3) AWC 1760, a Division Bench of the Hon’ble Allahabad High Court seised of a similar controversy held that in the absence of any provision under law, even if the petitioner is subjected to punishment in criminal proceedings that would not be a ground for withholding the post retiral benefits admissible to him. Radhey Shyam Chaubey v. High Court of Judicature at Allahabad, 2018 (3) AWC 2521.

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Consideration of Name – Recommended by Departmental Promotion Committee

The Hon’ble Supreme Court in the matter of Union of India v. Dr. Sudha Salhan, (1998) 3 SCC 394, while agreeing to the decision of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, has held that if on the date on which the name of the person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the sealed cover procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a sealed cover only if on the date of consideration of name for promotion the departmental proceedings had been initiated or were pending or on its conclusion, final order had not been passed by the appropriate authority. Gyan Prakash Pandey v. State of U.P., 2018 (4) AWC 3859.

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Appointment – Obtained by Fraud

The law in case of appointment obtained fraudulently is well settled. Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppel against the employer/authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppel against the employer to cancel such appointment or approval since “Fraud and Justice never dwell together.” Smt. Usha Singh v. State of U.P., 2018 (4) AWC 3680.

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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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Resignation Letter – With Request to Accept the Same Forthwith

A perusal of the resignation letter goes to show that the request was made to accept it forthwith and the employer carried it out accordingly. It was not the case where some date was specified in the resignation letter from which it was to be effected. Once there was no specification from any future date, rather, insistence was made to accept it forthwith, there was no fault with the employer in accepting the same. M/s Arvind Engineers v. Keshav Yadav, 2019 (163) FLR 329.

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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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Non-Holding of Oral Inquiry – Is a Serious Flaw

In Salahuddin Ansari v. State of U.P., 2008 (3) ESC 1667, it was held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order or punishment. It was held as under:

        “Non-holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.         In Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541, while considering the question as to whether holding of an inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee.” Mohan Law Garg v. State of U.P., (2019) 2 UPLBEC 1184.

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Factories Act – Time Required for Obtaining Sanction/Consent shall be Excluded

A careful perusal of Section 106 of the Factories Act clearly suggests that no court can take cognizance of any offence punishable under the Act, unless complaint is made within three months from the date, on which commission of alleged offence came into the knowledge of the Inspector.         Careful perusal of provisions of Section 470(3) of CrPC, clearly suggests that where notice of prosecution for an offence is given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. M/s Changer Vidyut Kranti Pvt. Ltd. v. State of Himachal Pradesh, 2019 (160) FLR 284.

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Irregular Appointment – Without any mistake of the Appointee

Even though it is settled that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates; in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, the Court had taken a sympathetic view in the light of various factors including bona fide of the candidate in such appointment and length of service of the candidate after such appointment. Ram Naresh Singh v. State of U.P., (2018) 3 UPLBEC 2134.

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