Tag Archives: employer

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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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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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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Requirements For Appointment – Cannot be changed during Ongoing Selection Process

Even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the notification alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the notification it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified. Bank of India v. Aarya K. Babu, (2019) 8 SCC 587

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One Establishment – Test for determination

L.N. Gadodia & Sons v. Provident Fund Commr., (2011) 13 SCC 517, this case dealt with the Employees Provident Fund Act and the question which arose was whether two sister concerns, having different dates of incorporation, could be treated as two separate establishments. The judgments in Associated Cement Companies Ltd. v. Workmen, AIR 1960 SC 56 and Pratap Press v. Delhi Press Workers’ Union, AIR 1960 SC 1213 were referred to for the said purpose. The observations qua Associated Cement Companies Ltd. v. Workmen, AIR 1960 SC 56, insofar as relevant is extracted as under:

“What then is “one establishment” in the ordinary industrial or business sense? … It is, perhaps, impossible to lay down any one test as an absolute and invariable test for all cases. The real purpose of these tests is to find out the true relation between the parts, branches, units, etc. If in their true relation they constitute one integrated whole, we say that the establishment is one; if on the contrary they do not constitute one integrated whole, each unit is then a separate unit. How the relation between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute which gives the right of unemployment compensation and also prescribes a disqualification therefor. Thus, in one case the unity of ownership, management and control may be the important test; in another case functional integrality or general unity may be the important test; and in still another case, the important test may be the unity of employment. Indeed, in a large number of cases several tests may fall for consideration at the same time. The difficulty of applying these tests arises because of the complexities of modern industrial organisation; many enterprises may have functional integrality between factories which are separately owned; some may be integrated in part with units or factories having the same ownership and in part with factories or plants which are independently owned.’ Shree Vishal Printers Ltd. v. Provident Fund Commr., (2019) 9 SCC 508.

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Gratuity – Cannot be Denied on Technical Grounds

There cannot be any two views that the Payment of Gratuity Act, 1972 is a beneficial piece of legislation enacted to introduce a scheme for payment of gratuity for certain industrial and commercial establishments as a measure of social security. The significance of the legislation lies in the acceptance of the principle of payment of gratuity as a compulsory statutory retiral benefit. The Act accepts, as a principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments. The main purpose and concept of gratuity is to provide for terminal benefits to a workman upon his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease.

        The Payment of Gratuity Act, 1972 being thus a welfare legislation meant for the benefit of the employees who serve their employer for a long time. It would be the duty of the employer to pay gratuity amount to the employee rather than denying the benefit on some technical ground.        

Applying the rule of beneficent construction, the provisions of the Payment of Gratuity Act, 1972 are to be interpreted liberally so as to give it a wide meaning rather a restrictive meaning which may negate the very object of the enactment. A beneficial legislation, it is well settled, as to be construed in its correct perspective so as to fructify the legislative intent underlying its enactment. Nagar Nigam Gorakhpur v. Suresh Pandey, 2020 (1) AWC 810.

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