Section 21 of U.P. Secondary Education Service Selection Board Act, 1982 provides that the management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period whether temporarily or permanently and any such thing done without such prior approval shall be void.
Section 21 of the U.P. Secondary Education Service Selection Board Act, 1982, has also been similarly interpreted by the Court in Hem Lata Agrawal v. District Inspector of Schools, 2003 (2) AWC 939. It was held as under: “The question whether the reversion of a teacher, who was appointed on temporary adhoc basis as Principal under Section 18 of the Act would amount to reduction in rank so as to require approval of the Board need not be considered here as whether or not it is a reduction in rank, it is clear that it amounts to reduction of emoluments. The petitioner is entitled to the salary for the post of Principal and reverting her, as a Lecturer would undoubtedly affect the emoluments to which she is entitled. The language of Section 21 of the Act is wide enough to cover within its scope the order impugned in this writ petition.”…. Kapil Deo Prasad V. Joint Director of Education 7th Region Gorakhpur, Writ – A No. – 442 of 2020, decided on 05.03.2020
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.
The statutory regulations framed under the Uttar Pradesh Intermediate Education Act, 1921, control both the management as well as the teacher’s right to terminate or resign from service. Regulation 26 under the Uttar Pradesh Intermediate Education Act, 1921 is in positive terms. Under it, the management can terminate the service of a permanent employee by giving him three month’s pay in lieu thereof. Giving of the three months’ notice or pay in lieu thereof is a condition precedent for the management to exercise its right to terminate the services of an employee. Regulation 29 under the Uttar Pradesh Intermediate Education Act, 1921 enables an employee to resign either by giving notice or pay in lieu thereof. The notice or pay to refer to the notice or pay to which he would have been entitled in case of termination by the management. Accordingly, an employee can resign only by giving a notice of three months’ or pay in lieu thereof. This shows that an employee has no unfettered right to resign.
Regulation 29 under the Uttar Pradesh Intermediate Education Act, 1921 enables an employee to resign with certain conditions with intention to protect the interest of the institution/management. If we carefully read Regulations 29 and 30 under the Uttar Pradesh Intermediate Education Act, 1921, it is crystal clear that an employee has no unfettered right to resign. He can exercise the right of resignation only in accordance with the provisions of Regulations 29 and 30. The requirement of furnishing three months’ notice under the aforesaid regulations is to ensure for the benefit of the management and is therefore, a requirement which can be waived by the management. A period of three months’ notice is provided for the benefit of the management so that the management would not find any difficulty in appointing a substantive teacher. Therefore, it is open for the management to give up the advantage conferred by the regulation and accept the resignation forthwith. Ramendra Kumar v. State of U.P., 2018 (6) AWC 5976.
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.
When an appointment, even if legal and valid, but contractual one, is governed by certain terms and conditions thereof, parties are bound to adhere to those conditions and cannot travel beyond that. Once appointment is made for fixed tenure, it would come to an end automatically on expiry of period for which appointment was made. The termination is automatic by efflux of time on expiry of said period. The continuance of person thereafter would not be on the basis of said agreement pursuant whereto incumbent was was appointed for a fixed tenure, it has already come to an end by efflux of time. Raj Kumar Singh v. State of U.P., 2018 (5) AWC 4967.
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.
In Nand Ram v. Garware Polyster Ltd., (2016) 149 FLR 306, it was held that where the management at Aurangabad first took a decision to transfer the workman from Aurangabad to Pondicherry and then to close the unit at Pondicherry. It was then held that while industrial dispute of termination from service could validly be raised at Pondicherry, however, in such a case, it does not mean that the adjudication proceedings initiated at Aurangabad, where the management took a decision to close the Pondicherry unit, were without jurisdiction.
In matters of industrial dispute, the principle of part cause of action does apply and there is no rule, that only if the two or more States will be competent to make a reference. It will depend on the facts of each case. Also, it may have to be borne in mind, how much or which part of the cause of action arose inside the State where a reference happens to be made. Also, in case of two references arising in two different States, involving the same set of facts or cause of action, different tests may have to be evolved to see which of the two references arose first or which of the reference is more comprehensive or which may require to be decided first or which would suite the parties. Veritaz Health Care Ltd. v. State of U.P.¸ 2017 (3) AWC 3051.