Search By Topic: Service Matters

352. (P&H HC) 13-05-2020

A. Punjab Co-operative Societies Act, 1961 (25 of 1961), Section 54 – Dismissal of employee -- Embezzlement charge – Inquiry Report -- Inquiry Report does not even reflect any consideration, worth the name, of the documentary evidence by the Inquiry Officer to support his ultimate findings -- Inquiry Officer patently went by the oral evidence adduced before him, which was discussed at length, but there is neither any detailed reference to nor discussion about the documentary evidence marked through the said witnesses -- Though it would not have been possible for the Inquiry Officer to record individual findings on each of the 3549 fake entries allegedly made by the petitioner, he did not even choose to randomly test and analyze at least some such entries and record proper findings thereon – Dismissal order and Inquiry report are incurably tainted by illegality and arbitrariness apart from being violative of the principles of natural justice.

(Para 67,68, 71)

B. Punjab Co-operative Societies Act, 1961 (25 of 1961), Section 54 -- Destruction of record – Burden of proof -- Inquiry Officer merely noted that the ledger sheets were missing and held that ‘there was no evidence to rebut that ledger sheets missing have not been stolen/ destroyed/concealed by the Charged Official’ -- Inquiry Officer thereupon opined that the allegation that these documents were destroyed or stolen by the petitioner stood proved – Burden of proving the charges was shifted upon the petitioner in reverse – Held, it was for the Bank to substantiate and prove that the petitioner had stolen the ledger sheets of his own accounts from the two Branches and not for the petitioner to rebut such a presumption, as postulated by the Inquiry Officer -- Dismissal order and Inquiry report are incurably tainted by illegality and arbitrariness apart from being violative of the principles of natural justice.

(Para 69, 71)

C. Punjab Co-operative Societies Act, 1961 (25 of 1961), Section 54 -- Ex-parte inquiry – Cross-examination of witnesses – Right of -- Non-cooperation attributed to the petitioner to justify his exclusion from the inquiry is wholly insufficient as the Inquiry Officer himself recorded that even thereafter, he invited the petitioner to participate in the proceedings -- However, there is no indication of the Inquiry Officer putting the petitioner on notice – Petitioner ought not to have been deprived of an opportunity to at least cross-examine the witnesses, two of whom were the authors of the final reports, even if he had been set ex parte, which, in fact, he was not -- He was however denied such opportunity -- Thus, the inquiry proceedings stand vitiated on this ground.

(Para 70, 71)

353. (SC) 18-03-2020

A. Constitution of India, Article 311 -- Removal of probationer on assessment of performance – Enquiry -- Opportunity of hearing -- Requirement of -- Probationer not strictly covered within the umbrella of Article 311 -- Merely because ACRs were consistently marked ‘Good’, it cannot be a ground to bestow him with a right to continue in service – Neither any specific misconduct has been attributed nor any allegation made – Order is based upon overall assessment of the performance during the period of probation, which was not found satisfactory – Such an inference which can be a valid foundation to dispense with services of a probationer does not warrant holding of an enquiry in terms of Article 311 of the Constitution -- In cases of ‘stigmatic’ removal only that a reasonable opportunity of hearing is sine-qua-non.

(Para 14-20)

B. Constitution of India, Article 311 -- Probation period – Nature of -- Entire objective of probation is to provide the employer an opportunity to evaluate the probationer’s performance and test his suitability for a particular post -- Such an exercise is a necessary part of the process of recruitment, and must not be treated lightly -- Written tests and interviews are only attempts to predict a candidate’s possibility of success at a particular job -- True test of suitability is actual performance of duties which can only be applied after the candidate joins and starts working.

(Para 16)

C. Constitution of India, Article 311 -- Removal of probationer – Judicial review of -- If the Court finds that the real motive behind the order was to ‘punish’ the official, it may always strike down the same for want of reasonable opportunity of being heard -- Onus would lie on the probationer to prove that the action taken against him was of punitive characteristics.

(Para 21, 24)

D. Constitution of India, Article 311 -- Appointment of Civil Judge (Junior Division)-cum-Judicial Magistrate – Exercise of power not vested – Removal during probation -- Judicial officer is expected to be in know of Section 36(3) of the NDPS Act, 1985 which expressly ousts competence of a judicial officer below the rank of Sessions Judge or an Additional Sessions Judge in NDPS matters -- High Court on administrative side, therefore, justifiably inferred he was prone to act negligently or had the tendency to usurp power which the law does not vest in him -- This was a relevant factor to determine suitability of a probationer judicial officer – Order of discharge whereby services were dispensed with during probation approved.

(Para 23)

357. (P&H HC) 04-03-2020

A. Central Reserve Police Force Rules 1955, Rule 16, 31 -- Central Civil Services (Temporary Service) Rules 1965, Rule 5 – Constitution of India, Article 14 --  Principle of natural justice -- Temporary employee – Termination of – Show-cause notice – Requirement of -- Allegation of desertion and misconduct -- Desertion is a serious allegation, which cannot be proved without any enquiry -- Reason behind the termination order was the allegation of misconduct – Held, it was necessary and incumbent as well as mandatory for the respondents to hold an enquiry -- Even a probationer has protection against the arbitrary termination and probationer is also entitled to certain protection -- Service of temporary employee cannot be terminated arbitrarily or punitively without applying the principle of natural justice -- Termination order of a temporary employee without enquiry cannot be sustained.

(Para 11-15)

B. Central Reserve Police Force Rules 1955, Rule 16, 31 -- Central Civil Services (Temporary Service) Rules 1965, Rule 5 – Constitution of India, Article 14 --  Temporary employee – Leave without sanction -- Deserter – Misconduct – Termination of -- Petitioner had applied for leave for his own marriage -- Due to compelling circumstances, petitioner left the training centre for undergoing the marriage ceremony -- Date of marriage had already been fixed by his parents and it would have been embarrassment not only for the relatives of the petitioners but more so for the girl side and all the people, who were attending the marriage ceremony -- Rejection of his leave in these circumstances left no choice with the petitioner but to leave as he did – Since, the petitioner did return to join back, the punishment of termination in the present situation is nothing but 'harsh' and therefore deserves to be set aside -- Respondents are directed to take back the petitioner into service forthwith, however, the petitioner shall not be entitled to the back wages.

(Para 20-23)

375. (SC) 11-12-2013

A. Industrial Disputes Act, 1947 (14 of 1947), Section 25-F – Daily wager worker -- Notice pay – Non-Compliance of – Re-instatement of – Retrenchment of -- When the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation – When he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay -- In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.

(Para 24)

B. Industrial Disputes Act, 1947 (14 of 1947), Section 25-F – Unfair labour practice – Violation of Principle of last come first go – Junior regularised – Termination of daily wager worker – Reinstatement of worker – Right of -- In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement -- In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.

(Para 25)

C. Industrial Disputes Act, 1947 (14 of 1947), Section 25-F – Termination took place more than 11 years ago -- No direct evidence for working 15 years has been furnished and most of his documents are relatable to two years i.e. 2001 and 2002 -- Need of lineman in the telephone department is drastically reduced after the advancement of technology – End of justice would be met by granting compensation in lieu of reinstatement – Compensation of Rs. 3 lakhs granted.

(Para 26)