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
Tag Archives: employment law
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
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.
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.
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.
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.
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.
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.