Tag Archives: employment law

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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Recruitment – No Discrimination Can Be Permitted

In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Hon’ble Supreme Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. It was held as under: “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” Mohd. Rashid v. Local Bodies, (2020) 2 SCC 582

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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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“Ad Hoc Appointment and “Officiating Appointment” – Distinction Between

In P. Ramanatha Aiyar’s Adcanced Law Lexicon (4th Edition) the phrase “Ad hoc Appointment” is described as temporary appointment made without selection of the candidate by any of the methods of recruitment provided under the relevant service rules or any orders of the Government where no service rules exist and otherwise than on the recommendations of the Commission if the post is in its purview. The treatise goes on to state that ad hoc appointment is made as a stop gap arrangement to carry on the Governmental work before the regular selection is made. “Officiating appointment” has been described in the aforesaid treatise as an appointment, not made substantively, which is temporary until further arrangements are made for filling the post permanently. “Officiating Service” has been described therein as service rendered as a non-permanent holder. There is a common thread in both types of appointment which is that both appointments are temporary made to serve a purpose. The discernible difference between the two is that in a case of officiating appointment, ordinarily, a post exists from before whereas in a case of ad hoc appointment it is not necessary that a post may exist from before because an ad hoc appointment may be made by way of an arrangement  to serve a purpose/exigency that may have arisen. Dr. Madan Gopal Pandey v. State of U.P., 2018 (6) AWC 6264.

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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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Employee on Deputation – Has no Right to Claim Absorption

In U.P. Rajkiya Nirman Nigam v. P.K. Bhatnagar, (2007) 14 SCC 498, it was held that the mere fact that the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well settled that the employee who has been sent on deputation, has no right to claim absorption. Raja Singh v. State of U.P., (2019) 6 SCC 528.

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Mere Lack of Efficiency and Skill – Does Not Constitute Misconduct

In Shabih Haider v. State of U.P., 2018 (1) ADJ 327 it was held that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority. The power of the State Government to place Government Servant under suspension is creature of the Statute and/or contract and the decision be taken keeping in view the letter and spirit of the Statute. The power of suspension arises when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding. It was also held placing reliance on decision of a Five Judge Bench of the Hon’ble Allahabad High Court in State of U.P. v. Jai Sing Dixit, 1974 ALJ 92, that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension of a Government Servant. Vijay Kumar Agarwal v. State of U.P., 2020 (1) AWC 646.

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Injury – Not in the Course of Employment

In the case of Malikarjuna G. Hiremath v. Branch Manager, 2009 (121) FLR 216, the Hon’ble Apex Court had considered the fact situation when the deceased was employed as driver of truck and was driving the vehicle on the instructions of the owner of the truck and when the vehicle reached Gurugunta, he went to the pond and while taking bath at a pit, he had slipped and drowned. The Hon’ble Supreme Court in the said case has held that the cause of death of the deceased had no casual connection with the nature of work performed by the deceased in his employment. Thus, the Hon’ble Apex Court was of the view that the injury which cause the death of workman could not be said to have arisen out of and in the course of employment, and consequently, it was held that the liability of compensation cannot be fastened upon the owner or the insurer of the vehicle to pay compensation. Oriental Insurance Co. Ltd. v. Somdatt Sharma, 2019 (160) FLR 249.

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Filed under Employees Compensation, Employees Compensation, Injury Not caused in the Course of Employment

Criminal and Departmental Proceedings – Have Different Objectives

Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the Prevention of Corruption Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. Karnataka Power Transmission Corporation Ltd. v. C. Nagaraju, (2019) 10 SCC 367.

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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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