10 Sep 2023 10:32 AM GMT
Appointment and RTI mattersSupreme CourtAppointment Can’t Be Denied Citing Suppression of Material Facts When Employer’s Query Was VagueThe Court in State of West Bengal v. Mitul Kumar Jana 2023 LiveLaw (SC) 714, while adjudicating upon the allegations of suppressing information related to a criminal case during the application process, held that “For determining suppression or...
Appointment Can’t Be Denied Citing Suppression of Material Facts When Employer’s Query Was Vague
The Court in State of West Bengal v. Mitul Kumar Jana 2023 LiveLaw (SC) 714, while adjudicating upon the allegations of suppressing information related to a criminal case during the application process, held that “For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer, the same can be considered in an objective manner while addressing the question of fitness. However, in such cases, action cannot be taken on the basis of suppression or submitting false information as to a fact which was not even asked for.” The Court relied on Avtar Singh v. Union of India (2016) 8 SCC 471, which has outlined definitive guidelines for employers when dealing with cases involving suppression or false mention of criminal information by candidates.
The Bench comprised of Justices J.K. Maheshwari and K.V. Vishwanathan.
The case revolved around appointing a candidate to the constable post in the West Bengal Police Force. The candidate had faced allegations of suppressing information about a criminal case during the application process. A column had to be filled in the form where candidates were required to provide details about their arrest, detention, conviction, and sentence for any offense.
The Court opined that the respondent (constable) was not obligated to furnish information about pending criminal cases, as the query specifically pertained to arrest, detention, and conviction. Based on this, the Court directed the appellant to consider the case of the respondent and issue an order of appointment to the post of constable in the West Bengal Police Force within four weeks from the date of passing of the order.
Report on this case can be read here.
Once Appointment Is Declared Illegal & Void Ab Initio, One Cannot Legally Continue in Service & Claim Salary
A Division Bench, while hearing an appeal against a judgment of the Gauhati High Court, held once appointment has been declared illegal and void ab initio, continuing in service becomes untenable in the absence of challenge to the cancellation order. It further held that the failure to contest the cancellation order bars the appellant from claiming a legal right to continue in service and consequent salary claims.
The Bench comprised of Justices Hima Kohli and Rajesh Bindal.
In its impugned order, the High Court dismissed the claim of appellant for release of unpaid salary from 2001 onwards as an Assistant teacher in Assam. The Apex Court refused to interfere with the impugned judgment and opined:
“Once the appointment of the appellant had been declared illegal and void ab initio, and was canceled by the Director of Elementary Education, Assam vide order dated 18.10.2001, the appellant could not legally continue in service thereafter unless that cancellation order was set aside. It has been noticed by the High Court that the order dated 18.10.2001 was never challenged by the appellant. Thus, the appellant had no legal right to continue in service, especially when there was no order or letter placed on record by the appellant that she was allowed to continue beyond 31.03.2002. No claim for payment of salary could be made for any period.”
Based on these facts and circumstance, the Court dismissed the appeal.
Smt Dulu Deka v. State of Assam, 2023 LiveLaw (SC) 691
Persons Who Secure Job in Reserved Posts Based On False Caste Certificates Liable to Be Dismissed
A Division Bench of the Court, while hearing an appeal in Bhubaneswar Development Authority v. Madhumita Das & Ors, 2023 LiveLaw (SC) 644, reiterated that no protection should be given to persons who secure public employment through false caste certificates. The Court set aside a judgment of the Orissa High Court which directed a public authority to consider reinstating an employee, who was found to have obtained employment in reserved post on the basis of a false certificate.
The Court opined that it is immaterial whether the caste certificate was submitted fraudulently or due to a genuine mistaken belief. Intent is of no consequence.
The Bench comprising Chief Justice of India Dhananjaya Y Chandrachud and Justice J B Pardiwala held “that granting protection to individuals who are ineligible for the post has a deleterious effect on good governance.” It further added that the said protection would allow an ineligible person to gain access to a scarce public resource, violate the rights of an eligible person, and perpetuate illegality by unduly bestowing benefits on an ineligible person.
Report on the case can be read here.
Karnataka High Court
Employee Can Access Colleague’s Service Records Under RTI Act to Pursue Service Litigation
A Single-Judge Bench of Justice Krishna S Dixit, while allowing a writ petition, set aside an order passed by the State Information Commissioner wherein an application filed by a college professor seeking service record details of his colleague was rejected.
The petitioner had argued that he is entitled to know the material particulars of service of the persons indicated in the RTI Application inasmuch as that information provides the substratum for structuring his claims in Service Law such as confirmation, seniority, promotion & the like.
Agreeing to the petitioner’s contention, the bench said, “The petitioner, a party-in-person is justified in contending that unless the service particulars of the persons which he has sought for in the subject RTI application are furnished, he will not be in a position to work out his grievance in the subject service matter.”
Based on these facts and observations, the Court directed the Principal Marimallapas PU College, Mysuru to furnish service particulars of the persons concerned and copies of records in that connection within a period of three weeks, failing which for the delay of each day, the respondent shall pay from his pocket a sum of Rs. 1,000 to the petitioner.
A S Mallikarjunaswamy, and State Information Commissioner & others, 2023 LiveLaw (Kar) 332
Madras High Court
‘Deserves No Sympathy’: High Court Upholds Termination Of Man Who Obtained Compassionate Appointment With A False Certificate
A Single-Judge Bench of Justice CV Karthikeyan refused to interfere with the removal from service of a man who had obtained a compassionate appointment through suppression of facts, observing that he did not deserve any sympathy.
The Bench criticised the manner in which the man had obtained a certificate claiming that his family was indigent by suppressing material facts and went on to get employment based on the certificate.
In the present case, the petitioner had suppressed the fact that his mother was working as an Upgraded Assistant and was drawing a salary of Rs 11,289 per month while applying for the indigent certificate and had claimed that nobody in his family was in government service.
Petitioner contended that his mother, though working in the Government department, was living separately from his father and that it is to be presumed that after his father’s death, no one in the family was working in the government service.
However, the Court, while dismissing petition held:
“This is a case where the petitioner had, for some reason, suppressed a vital information and had obtained the certificate declaring that not only him, but the whole family was, after the death of the father was in indigent circumstances. That fact is not correct… At the age of 30 years, he should be aware of the consequences of suppression of vital fact and obtaining a certificate on the basis of such suppression. He cannot not claim ignorance. He cannot claim innocence and he cannot seek indulgence of this Court”
N Mahendran v The Director of Public Health and Preventive Medicine and others, 2023 LiveLaw (Mad) 248
Retired Employees Can’t Claim Benefit of Subsequent Govt Decision to Increase Retirement Age
In Dr. Prakasan MP and others v. State of Kerala and others 2023 LiveLaw (SC) 708, the Court, while dismissing a petition filed by a group of teachers in Homeopathic Medical Colleges in Kerala seeking an increase of their retirement age from 55 years to 60 years at par with the teachers of other Medical Colleges, opined that “the age of retirement is purely a policy matter that lies within the domain of the State Government”. It held:
“It is not for the courts to prescribe a different age of retirement from the one applicable to Government employees under the relevant service Rules and Regulations. Nor can the Court insist that once the State had taken a decision to issue a similar Government Order that would extend the age of retirement of the staff teaching in the Homeopathic Colleges...”
The Bench comprised of Justices Hima Kohli and Rajesh Bindal.
Pertinently, the Court referred to the 2021 decision of the Supreme Court in New Okhla Industrial Development Authority and Another v. B.D. Singhal and Others L.L. 2021 SC 297, which disapproved of a direction issued by the Allahabad High Court to enhance the age of superannuation of NOIDA employees, observing that it was purely a matter of State policy.
Report on this case can be read here.
Retirement Age Can’t Be Increased Based on Superannuation Age in Another Similar Post
In a similar case, the Court held that the age of superannuation for employees is determined solely by statutory rules. It held that even if two job positions share similar tasks, this similarity does not warrant altering an employee's service conditions.
“The age of superannuation is always governed by the statutory rules governing appointment on a particular post. Hence, even if it is averred that the nature of work involved in the two posts is similar, the same cannot be a ground to increase or alter the service conditions of an employee as each post is governed by its own set of rules.”
The Supreme Court bench comprising Chief Justice of India DY Chandrachud and Justices J.B. Pardiwala was hearing an appeal by the Central Council for Research in Ayurvedic Sciences (CCRAS), Ministry of Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH), against an Orissa High Court judgment which held that the respondent (an employee of CCRAS) was entitled to the benefit of enhancement of retirement age from 60 to 65 years as applicable to the AYUSH doctors working under the Ministry of AYUSH.
The Court opined that the issue of setting the age of superannuation is a matter of policy-making. While the Court acknowledged its role in ensuring that policy decisions are not arbitrary, it emphasized that the prerogative to establish superannuation age policies lies with the relevant authorities.
Based on this, the Court set aside a judgment of the Orissa High Court.
Central Council for Research in Ayurvedic Sciences v. Bikartan Das 2023 LiveLaw (SC) 692.
Kerala High Court
Employee Leaving Service on Retirement or Resignation Has No Right to Claim Leave Encashment Unless Enabled by Statute
A Division Bench, comprising Justices Alexander Thomas and C. Jayachandran, recently held that an employee who leaves his service either on retirement, voluntary or otherwise, or on resignation, would have no vested or inherent right to claim leave encashment, unless it is otherwise enabled by the statute, rules, or norms regulating the conditions of service.
The Bench was hearing an appeal preferred by the National Insurance Company seeking to set aside the Single Judge’s order directing the Company to disburse leave encashment to the employee on the ground that the same is part of the salary.
In this case, the respondent employee was governed by the General Insurance (Rationalisation of Pay Scales and other Service Conditions of Officers) Scheme, 1975 and General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976.
As per the said scheme, the incident of retirement, either voluntary or on superannuation, is a sine qua non for claiming the benefit of earned leave as per the above norms. However, the respondent had not secured either voluntary retirement or superannuation retirement. Based on this, the Court held that his resignation cannot be equated to voluntary retirement, since he resigned before attaining the cut off age of 55 years.
National Insurance Co. Ltd. & Ors. v. S. Sudeep Kumar, 2023 LiveLaw (Ker) 420
When Statute Enables Withdrawal of Voluntary Retirement, Employers Shouldn't Act with Undue Haste & Refuse It
A Division Bench, comprising Justices Alexander Thomas and C. Jayachandran, ruled that a request for withdrawal of an application for voluntary retirement that is made within five days of submitting such application, as enabled by Rule 48-A(4) of the CCS (Pension) Rules, 1972, cannot be refused on any premise.
The said rule precludes withdrawal of a notice seeking voluntary retirement except with the specific approval of the appointing authority, provided that such request for withdrawal is made before the intended date of his retirement.
The Court observed that although the petitioner-applicant had sought for waiver of the notice period of three months while submitting his request for voluntary retirement at the first instance, it was axiomatic that the respondent authorities had acted with undue haste, without arriving at a proper satisfaction required as per statute, to waive the notice period.
It added that the very purpose behind affording a notice period in the statute itself is to enable the applicant to take a well-considered decision about his career and reiterate his decision to take voluntary retirement, so that the same is not actuated by any extraneous feelings or emotions, at the spur of a moment.
Thus, the Court directed the competent authority to reinstate the petitioner with effect from October 8, 2021.
Case Title: Faziludeen v. Union of India & Ors., 2023 LiveLaw (Ker) 416
Report on the case can be read here.
Pension Is Service Matter, Court Directed Petitioner to Approach Armed Forces Tribunal
A Division Bench, comprising Justices Sanjiv Khanna and Bela M. Trivedi, while deciding upon an issue for payment of revised pension, held that since pension is covered within Service matters, the petitioner should approach Armed Forces Tribunal, which must decide the issue expeditiously.
The present petition was filed by the ‘Voice of Ex-Servicemen society’. Petitioner contended that 6th pay commission, 7th pay commission as well as government via gazette notification had accepted revised pension would be paid to those who retired both pre and post 1.1.2016. Even during the implementation, the government had accepted that those who retired pre-1.1.2016 would be covered. However, in a volte-face, the government later declared that the revised pension would only apply to those retiring post 1.1.2016.
Moving forward, the petitioner urged the Court that they cannot approach the tribunal collectively. The entire process would be cumbersome since thousands of senior citizens are aggrieved in this matter.
In view of the same, the Court ordered that retired officers would be permitted to file the matter in a representative capacity; however, it did not allow any federations.
Voice of Ex-servicemen Society v. Union of India, 2023
Past Service as Contractual Employee to Be Taken into Account for Pension
A Division Bench of the Court, comprising Justices S. Ravindra Bhat and Aravind Kumar, held that for the purposes of pension, past service as a contractual employee is to be taken into account.
The appeal filed by the State of Himachal Pradesh against a High Court decision which directed the State to grant the employees’ pension taking into account the previous period of contractual employment.
The State’s contention rested on Rule 2(g) of the CCS Pension Rules, 1972, which seemingly excluded contractual employees from the purview of pension rules. It argued that Rule 17, which allows the inclusion of service period as a contractual worker for pension calculations, would not be applicable due to the exclusion clause in Rule 2(g).
However, the Supreme Court disagreed with the State’s interpretation, asserting that such a reading would render Rule 17 redundant. The Court emphasized that Rule 17 was specifically introduced to address scenarios where contractual employees are later regularized by the state, ensuring continuity in pension calculations.
Therefore, the Court directed the state of Himachal Pradesh to finish the entire process within 3 months and issue orders fixing pensions for these employees engaged in education and ayurvedic department.
State of Himachal Pradesh v. Sheela Devi, 2023 LiveLaw (SC) 663
Calcutta High Court
Employee Can’t Be Penalised for Shortfall in Service Due to Delay by Authority in Making Appointment
The Court, while allowing a writ petition, held that the petitioner cannot be held responsible for the time taken by the authorities, starting from deciding to forward the name of the petitioner to the date of such appointment. It further held that the ‘deficiency in service’ that had accrued to the petitioner’s detriment had been due to the delay caused by the State authorities in making his appointment.
“The right of the petitioner to be appointed to the post of Primary School Teacher, however, got crystalised when a decision was taken to forward the name of the petitioner to the Director of School Education for approval. Such delay is solely attributable to the conduct of the respondent authorities and it ultimately led to the shortfall in the qualifying service period for pensionary benefit. The petitioner cannot be penalised for the delay caused by the respondent authorities in appointing the petitioner to the post in question. It is well settled that the petitioner should not be penalized for the lack of promptness in taking action by the concerned authorities.”
A single bench of Justice Hiranmay Bhattacharya heard the present petition filed by an Assistant Teacher of a primary school, who challenged the order of the Principal Secretary to the Government of West Bengal School Education Department, denying him pensionary benefits. The petitioner had also sought condonation of “deficiency in the qualifying service period” for pension.
Goalbadan Mandal v. State of West Bengal & ors., 2023 LiveLaw (Cal) 212
Allahabad High Court
Withholding Retiral Benefits of Employees a Sin, Public Functionaries Obliged to Be People-Oriented
The Court, while hearing a writ petition, seeking post-retiral benefits, held that withholding retiral dues is not only arbitrary but also a sin in the absence of provisions penalising such actions of employers, especially the State instrumentalities. The petition was heard by a Single-Judge Bench of Justice Kshitij Shailendra.
The petitioner was appointed as a Safai Karmchari in 1990 and was regularized in 2008. He retired from his post after attaining the age of superannuation in 2020. The petitioner approached the High Court since his post-retiral benefits including pension have not been released in his favour despite applications moved by him before the municipality.
The Court observed that it had issued a general mandamus in the matter Mukti Nath Rai v. State of U.P. (through the Superintending Engineer, P.W.D.) and others to all the State Departments to expeditiously complete all formalities for releasing the post retiral dues.
Taking a stern view on the matter, the Court directed the Chief Secretary to issue circulars to all departments regarding the disbursement of retiral dues in terms of the judgment of this Court in Mukti Nath Rai.
Ram Kumar vs. State of U.P. and Another, 2023 LiveLaw (AB) 291
KSRTC Can’t Use Employees’ Pension Contributions to Meet Its Financial Obligations
The Court recently dismissed an appeal filed by the Kerala State Road Transport Corporation (KSRTC) challenging the Single Judge decision directing KSRTC to deposit both the employees’ and employer’s contributions to the National Pension Scheme (NPS), and the contributions to State Life Insurance Policy and Group Insurance Accounts within six months.
The Division Bench, comprising Justices Alexander Thomas and C. Jayachandran, found no infirmity in the decision of the Single Judge and upheld the same.
The Court further opined that once the KSRTC had effected deductions from the employees’ salaries, the non-remittance of the same could not be justified. It observed that even if the financial plight propounded by the KSRTC was considered, it would not provide any justifiable ground for non-remittance of the employee’s contribution to the National Pension Scheme.
Therefore, the Court rejected the appeal, while granting a further period of six months from the date of receipt of a copy of the judgment for KSRTC to effect the payments.
Managing Director, KSRTC & Anr. v. S.A. Suneesh Kumar & Ors., 2023 LiveLaw (Ker) 401
Maternity Benefits Must Be Granted Even If Period of Benefit Overshoots Term of Contractual Employment
A 3-judge Bench, comprising Justices Aniruddha Bose, Sanjay Kumar, and SVN Bhatti, while deciding upon an issue on whether maternity benefits would apply to contractual employees if the period of benefit overshoots the contractual period, held that maternity benefits have to be granted even if the period of benefit overshoots the term of contractual employment. Maternity benefits can travel beyond the term of contractual employment.
The Court was hearing an appeal against a Delhi High Court ruling that had restricted maternity benefits to a mere 11-day period due to the expiration of a contractual agreement. After examining the provisions of the Maternity Benefit Act, 1961 (Act), the Court observed that the continuation of maternity benefits is inbuilt in the statute itself, where the benefits would survive and continue despite the cessation of employment. It further observed:
“Section 12(2(a)) of the Maternity Benefit Act, 1961 contemplates entitlement even for an employee who is dismissed/discharged during her pregnancy. Thus, inbuilt in the statute itself, there is a provision for extending benefits for a period beyond the term of employment. What the statute contemplates is the entitlement of medical benefit which accrues by fulfillment of condition under section 5 and benefit can travel beyond the term of employment also and it’s not co-terminus with the employment period.”
Pertinently, the Court supported the above-mentioned view by citing several judgments, including Deepika Singh v. Central Administrative Tribunal and Others (2022) 7 SCR 557.
In view of the same, the Court allowed the appeal. It directed the employer to extend maternity benefits as would have been available to the appellant in terms of Sections 5 and 8 of the Act, after deducting therefrom any sum that may already have been paid to the appellant under the same head or for such purpose.
Dr. Kavita Yadav v. Secy, Ministry of Health and Family Welfare, 2023 LiveLaw (SC) 701
Delhi High Court
Pregnant Working Women Entitled to Maternity Benefits, Can’t Be Barred Solely Due to Nature of Employment
The Delhi High Court, in the matter of Annwesha Deb v. Delhi State Legal Services Authority, 2023 LiveLaw (Del) 743, heard a writ petition filed under Article 226 seeking the order directing the respondent to grant all consecutive maternity benefits to the petitioner, a contractual employee, which is applicable to regular female employees of the respondent.
The petition was heard by a Single-judge Bench of Justice Chandra Dhari Singh.
Notably, the Court observed that pregnant working women are entitled to maternity benefits and cannot be denied reliefs under the Maternity Benefit Act, 2017 (Act) solely due to the nature of their employment.
After relying upon a catena of judgments, the Court held that the Act is a welfare and social legislation and the intent of the legislature in no manner could have been to limit or restrict the extent and scope of reliefs that may be granted to all those falling within the ambit of the Act. There is nothing in the language of the Act or in its provisions that suggests that a working expecting woman would be barred from getting the reliefs due to the sole reason of the nature of their employment.
Remarkably, the Court also recorded:
“Even in this day and age, if a woman is made to choose between her familial life and a career progression, we would be failing as a society by not providing her the means to thrive, whether in professional life or in personal life.”
In view of the same, the Court directed the respondent to release all medical, monetary, and other benefits accrued in favor of the petitioner on account of her pregnancy, as per the terms of the Act.
Refusing Paternity Leave to Father Violates Child's Right to Life U/Article 21
A Single-Judge Bench of Justice L. Victoria Gowri, while hearing a writ petition, held that the refusal of the Police Department to cancel and refuse paternity leave to the petitioner would amount to a “violation” of the right to life of child guaranteed under Article 21 of the Constitution of India.
“The petitioner's child's right to live, survive, health and development of childhood, which flows from Article 21 of the Constitution of India, guarantees the petitioner's right to seek paternity leave to attend his wife's delivery."
Highlighting the importance of the role of both a father and a mother during the prenatal care and post-natal care days of a child, the Court observed that because of the challenges of nuclear families, it is high time for the policymakers to “recognise the right to paternity leave/parental leave” to the biological/adoptive parents as the basic human right of the respective prenatal/post natal child.
The Court further observed that the right to protection of life guaranteed to every child by Articles 21 and 15(3) of the Constitution of India “culminates” in the fundamental human right of the biological parents/adopting parents seeking maternity/paternity/parental leave.
“A welfare state is at the bounden duty to provide the foetus with dignified prenatal care and the child with proper health care, hygiene and sanitation in the post-natal care days. Perhaps grant of maternity/paternity leave to the biological parents and paternal leave to the adoptive parents is to ensure proper prenatal/post-natal care, upholding the child's right to protection of life as guaranteed under Article 21.”
Thus, the Court directed the Deputy Inspector General of Police to re-visit the impugned order.
B. Saravanan vs. The Deputy Inspector General of Police, Tirunelveli Region, Tirunelveli and others, 2023 LiveLaw (Mad) 235
As per Central Civil Service Rules, a Retired Employee Can Be Appointed As an Inquiry Authority In Disciplinary Proceedings
A Division Bench, while hearing an appeal in Union of India v. Jagdish Chandra Sethy 2023 LiveLaw (SC) 609, challenging Odisha H.C. judgment, held that the disciplinary authority under the Central Civil Service Rules (Rules) is empowered to appoint a retired employee as an inquiry authority. It is not necessary that the inquiry officer should be a public servant.
The Bench comprised of Justices Sanjiv Khanna and Bela M Trivedi.
Pertinently, the impugned judgment relied on Ravi Malik v. National Film Development Corporation to hold that a retired public servant could not have been appointed as an inquiry officer. However, the Apex Court distinguished both cases and relied upon Union of India v. Alok Kumar (2010) 5 SCC 349., for the current findings.
In the Alok Kumar case, the Court had made it clear that provision 9(3) of the Rules used the word “other authority” and not “public servant” who may conduct an inquiry. It observed, “a retired officer could also be vested with the delegated authority of the disciplinary authority to hold the inquiry.”
In view of the same, the Court allowed the appeal and set aside the judgment of the High Court.
Burden of Proof Depends on the Nature of Charge and Explanation Put Forward by Employee
A Division Bench, while hearing an appeal, held that the burden of proof in disciplinary proceedings depends on the specific nature of the charge leveled against the respondent and the explanation they provide.
“It is well settled that, in a disciplinary proceeding, the question of burden of proof would depend upon the nature of the charge and the nature of the explanation put forward by the respondent. In a given case, the burden may be shifted to the respondent depending upon the explanation”
The Bench, comprising Justices J.K. Maheshwari and K.V. Vishwanathan, was hearing an appeal against a judgment of the Division Bench of Karnataka H.C., which affirmed the single bench decision to quash an order penalizing the respondent in the aftermath of a disciplinary proceeding.
However, the Court observed that neither the records nor the proceedings demonstrated how the respondent countered the charge of failure to conduct inspections. The Court further highlighted that the moment the records were made available for examination, the burden of proof shifted to the respondent to demonstrate that the charge was baseless or untenable.
Thus, allowing the appeal, the Court opined, “it constrains us to conclude that there was material on record for the appellant to pass the order of penalty.”
Importantly, the Court also delved into the scope of judicial review against a departmental enquiry proceeding. With respect to the same, the Court observed:
“It is not in the nature of an appeal and a review on merits of the decision is not permissible. The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensure that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the Court in a judicial review to re-appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court”
State Bank of India v. A.G.D. Reddy, 2023 LiveLaw (SC) 719
Employee Found Unsuitable For Job Can Be Dismissed Without Notice During Probationary Period : Supreme Court
The Supreme Court recently reiterated the distinction between simpliciter termination and punitive termination. This distinction is crucial since if the order of termination is punitive or stigmatic in nature, it becomes mandatory to conduct an inquiry following the procedure and an opportunity to be heard has to be given. Failure to do so may make such termination/discharge illegal and in violation of principles of natural justice.
The Court relied on the State of Punjab v. Balbir Singh, (2004) which emphasized that if an enquiry or assessment is conducted with the aim of uncovering any misconduct by an employee and results in their termination, it is considered punitive in nature. Whereas, if it is focused on evaluating an employee's suitability for a specific job, the termination is considered termination simpliciter and not punitive.
State of Punjab v. Jaswant Singh 2023 LiveLaw (SC) 761
Employees Facing Disciplinary Action for Unauthorised Absence Cannot Rejoin Duty
A single Judge Bench of Justice Viju Abraham, while hearing a writ petition, held that an employee who has been in unauthorized absence from service and against whom disciplinary proceedings have already been formally initiated cannot be allowed to rejoin the duty. The Court further added that disciplinary proceedings are considered initiated only upon the issuance of the memo of charges and in such cases, it might impact the eligibility of the employee for immediate reinstatement.
The case revolved around the petitioner who was an aided teacher. She was granted leave without allowance from 2014 to 2018 to join her spouse. Thereafter, she sought for extension of leave without allowance for five more years till 2023. The petitioner received no response from the authorities regarding the leave applications submitted by her.
Thereafter, the Manager of the school issued a memo of charges and a statement of allegations against the petitioner for unauthorized absence from duty. She was intimated that disciplinary proceedings were initiated against her. The petitioner wanted to rejoin the duty but she was denied permission as disciplinary proceedings had already been initiated.
Thus, the question to be decided was as to whether the petitioner could be allowed to rejoin duty, pending disciplinary proceedings.
The Court affirmed the respondents’ stance and inter-alia, took into consideration the decisions relied by the respondents including Vinod S. v. Kerala Electricity Board Ltd & Others [2020 KHC 842]. Respondents contended that when an employee has abandoned the service by a unilateral action is no longer in the rolls of the establishment for the purpose of requiring disciplinary proceedings against him.
In view of the same, it was held that the petitioner who was on unauthorized absence cannot be allowed to rejoin duty during the pendency of the disciplinary proceedings.
Sreelatha P. T. v. State of Kerala, WPC 19562 Of 2023