Service Matter AND LABOUR LAWS

2019 SCeJ 106

SUPREME COURT e@Journal

(Appeal arises out of the judgment dated 28.09.2010 passed by the High Court of Punjab and Haryana at Chandigarh dismissing the LPA No.713 of 2010)

8 January, 2019

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Service law  -  Pay scales – Equation of -  Well settled that equation of pay scales must be left to the Government and on the decision of the experts and the Court  should not interfere with it - Burden of establishing parity in pay scale and employment is on the person claiming such right - There were neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Sub Fire Officers is similar with that of the Head Clerks and the Internal Auditors to claim parity of pay scale -  Burden lies upon the party who claims parity of pay scale to prove similarity in duties and responsibilities - Determination of parity or disparity in duties and responsibilities is a complex issue and the same should be left to the expert body - When the expert body considered revision of pay for various posts, it did not revise the pay scale of Sub Fire Officers. When the expert body has taken such a view, it is not for the courts to substitute its views and interfere with the same and take a different view - When the expert body has taken a view, it is not for the courts to substitute its views and interfere with the same and take a different view.2019 SCeJ 106

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Service law  -  Equation of posts  - For considering the equation of posts, the following factors held to be determinative : 1. The nature and duties of a post; 2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; 3. The minimum qualifications, if any, prescribed for recruitment to the post; and 4. The salary of the post (Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850, relied).   2019 SCeJ 106             

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Service law  -  Pay scales – Equation of -  Claim by Sub Fire Officers of Punjab State Electricity Board (PSEB) for parity of scales with employees of other classes of posts within same group viz., Group XII of the Punjab State Electricity Board -   PSEB is an autonomous body constituted by Notification of the Punjab Government under Section 5 of the Electricity Supply Act, 1948 and the services under PSEB are governed by the Punjab State Electricity Board (Revised Pay) Regulations, 1988 - Board being an autonomous body governed by its own regulations, it was for the Board to classify its employees/posts on the basis of qualifications, duties and responsibilities of the posts concerned - If the classification has reasonable nexus with the objective sought to be achieved, the Board would be justified in prescribing different pay scales - Article 14 of the Constitution of India would be applicable only when a discrimination is made out between the persons who are similarly situated and not otherwise - It is the duty of an employee seeking parity of pay to prove and establish that they have been discriminated - The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales - It is the duty of an employee seeking parity of pay to prove and establish that he had been discriminated against - Burden of establishing parity in pay scale and employment is on the person claiming such right - There were neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Sub Fire Officers is similar with that of the Head Clerks and the Internal Auditors to claim parity of pay scale. Burden lies upon the party who claims parity of pay scale to prove similarity in duties and responsibilities - Constitution of India,  Article 14.2019 SCeJ 106

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Service law  -  Pay scales – Equation of -  Only in cases of complete similarity in the nature of work, duties, responsibilities and promotional channels, parity of pay scale can be claimed -  Financial implication is a relevant factor for accepting the revision of pay - Merely on the ground that all of them are categorised in a single Group  cannot be a ground for seeking parity of pay scale.2019 SCeJ 106

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Service law  -  Difference in pay scale -  Discrimination - Mere difference in pay scale does not always amount to discrimination; it depends upon the mode of selection/recruitment, nature, quality of work and duties and that the status of both the posts are identical - It is not always impermissible to provide two different pay scales in the same cadre.2019 SCeJ 106

 

 


2019 SCeJ 81

4th January, 2019

 

Service matter - Seniority - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rule 9 and Rule 12 read with guidelines annexed to Schedule F - For the purpose of seniority, teachers were categorised into various categories -  Appellant not having B.Ed. qualification  was appointed as untrained teacher on temporary basis in category 'F' on 15.7.1994 -   Appellant, who was not holding B.Ed. qualification was put in category 'F' and she became a member of 'C' category only after acquiring qualification of B.Ed. on 19.9.1997 -   Since X was holding qualification of B.A., B.Ed., X became a member of category ‘C’ at the very inception of appointment on 13th August, 1997, and the appellant became a member of category ‘C’ later on acquiring the B.Ed. qualification on 19.9.1997 - Appellants  claim of  seniority over X on basis of longer officiation of service -  Since seniority was to be determined on basis of total service rendered in a particular cadre, appellant can not claim seniority in category 'C' over X - Appointments are made of the teaching staff strictly in terms of rule 9 of the Rules, 1981 and their seniority is determined under Rule 12 read with the guidelines annexed to Schedule ‘F’ to the Rules, which envisages total continuous service rendered by the person in that particular cadre in any school or college, as the case may be, which may be a relevant consideration for the purpose of seniority and for promotion and later confirmation or becoming permanent in the cadre of teaching staff may not be the decisive factor for the purposes of determination of seniority of the teaching staff in the cadre under the scheme of Rules, 1981.2019 SCeJ 81

Decided   :  26 November, 2018 

Reported : 26 November, 2018 

 

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Service law  - Appointment in police -  Pendency of criminal case  -  Acquittal based on compromise - On the date when the candidate had applied, a criminal case was pending against him Disclosure made -  Compromise was entered into in the complainant only after an affidavit disclosing such pendency was filed -  Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate -  While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition - Nothing on record to suggest that the decision in rejecting the candidature was in any way actuated by mala fides or suffered on any other count - Candidature rightly rejected. Mohammed  Imran  v.  State  of Maharashtra and others (2018)2 SCeJ 1479 - distinguished . (2018)2 SCeJ 1755

 

 

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Date of decision: 14/11/2018 

Reported on 14/11/2018 

 

(2018)2 SCeJournal 1716

Service matter  - Temporary employees are entitled to draw wages at the minimum of the pay scales which are applicable to the regular employees holding the same post - Temporary employees are entitled to minimum of the pay scales as long as they continue in service. (2018)2 SCeJ 1716

Date of decision: 29th October, 2018 

Reported on 29/10/2018

(2018)2 SCeJournal 1574

 

Service Matter - NLC Employees (Control and Appeal) Rules - Rule 30 (3) - That "no order enhancing the punishment under this rule shall be made after a period of 30 days from the date on which the original order of punishment was served on the employee charged " - Punishment order (of “reduction of his rank to a lower stage by two stages in his time scale for a period of 2 years with cumulative effect”) was passed on 30.08.1997 whereas the higher authority exercised his power under Rule 30 on 07.07.2010 by which the punishment order dated 30.08.1997 was cancelled and was substituted by an order declaring the appellant's appointment as null and void - Order was passed beyond a period of 30 days - Higher authority could pass the order under Rule 30 for revoking the original order of punishment dated 30.08.1997 as being bad and substituting it with another order declaring the appellant's appointment as null and void within 30 days from the date of punishment order i.e, it could be passed on or before 30.09.1997 but not beyond this date -  Since in this case, the order was passed almost after 13 years from the date of passing of the original punishment order, and hence on the face, it was bad in law  - Set aside. (2018)2 SCeJournal 1574

 

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Service Matter - Appointment of “Diploma Engineer Trainee Grade II (Electrical)” -  At the time of the interview and the appointment, the appellant had produced photocopy of his Scheduled Caste Certificate to the Corporation and had sought time to produce its original to which the  Corporation granted the indulgence  - On 03.03.1988 appellant, sent a letter to the Corporation informing them that he belongs a community known as "Konda Reddi" which is a backward (SC) community and that he had approached the concerned Revenue Authorities for obtaining caste certificate in the prescribed form so as to enable him to submit it to the Corporation but the Revenue Authorities informed him that the Department has stopped issuing any such certificate – He, therefore, expressed his inability to produce the original Scheduled Caste Certificate and requested the Corporation to treat him as a candidate belonging to the "General Category" instead of "Reserved Category" in selection process - Punishment order (of “reduction of his rank to a lower stage by two stages in his time scale for a period of 2 years with cumulative effect”) was passed on 30.08.1997 whereas the higher authority exercised his power under Rule 30 of NLC Employees (Control and Appeal) Rules,  on 07.07.2010 cancelled punishment order dated 30.08.1997 and substituted by an order declaring the appellant's appointment as null and void – Liable to be set aside as - First, Appellant at the first available opportunity and before joining the duties had sent a letter on 03.03.1988 of his own to the Corporation informing therein that it was not possible for him to produce the original caste certificate because the Revenue Authorities had declined to issue the original caste certificate to him and had on his own requested the Corporation not to treat him as "reserved candidate" but treat him as "general candidate" -  In this way, the appellant, did not suppress any information relating to his caste certificate from the Corporation - Second, the Corporation, in these circumstances, had three options; (a) not to appoint the appellant which the Corporation did not opt; (b)  to grant some more time to produce the caste certificate or any other material to prove the appellant’s caste which again the Corporation did not opt and (c) to condone the lapse in filing the caste certificate and proceed to consider the appellant's case treating him as a candidate belonging to the general category for selection purpose which the Corporation opted - Third, the Corporation by their express conduct having followed the third option and condoned the lapse by asking the appellant to join the duties, which the appellant did, and later further promoting him to the next higher grade, the issue relating to caste certificate lost its significance - Fourth, the Corporation, in our opinion, had no right to hold any Departmental Enquiry in relation to the issue of appellant's caste certificate because they condoned the issue of caste certificate by allowing the appellant to join the duties and later by promoting him to the next higher grade -  Order passed in Departmental enquiry and Punishment order set aside.  (2018)2 SCeJournal 1574


12 October, 2018.

Service law  - Appointment in judicial service  -  If empanelment creates no right to appointment, equally there can be no arbitrary denial of appointment after empanelment - Selection for appointment to judicial service cancelled due to the character verification report of the police - Appellant has been acquitted of the charge under Sections 363, 366, 34, I.P.C. on 28.10.2004 much before he cleared the examination for appointment in the year 2009 - All the accused were acquitted because the prosecutrix did not support the allegations - The appellant was 21 years of age on the date of occurrence  - In his attestation form, he had duly disclosed his prosecution and acquittal -  Mere disclosure in an appropriate case may not be sufficient to hold for suitability in employment - Nonetheless the nature of allegations and the conduct in the facts of a case would certainly be a relevant factor - There cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor -  Much will depend on the facts of a case -  Every individual deserves an opportunity to improve, learn from the past and move ahead in life by self­improvement - To make past conduct, irrespective of all considerations, an albatross around the neck of the candidate, may not always constitute justice - Undisputed fact that one S, who had been acquitted on 24.11.2009 in Case under Sections 294, 504, 34, IPC, has been appointed -  We are not convinced, that in the facts and circumstances of the present case, the appellant could be discriminated and denied appointment arbitrarily when both the appointments were in judicial service, by the same selection procedure, of persons who faced criminal prosecutions and were acquitted - The distinction sought to be drawn by the respondents, that the former was not involved in a case of moral turpitude does not leave us convinced - In the entirety of the facts and circumstances of the case, we are of the considered opinion that the consideration of the candidature of the appellant and its rejection are afflicted by a myopic vision, blurred by the spectacle of what has been described as moral turpitude, reflecting inadequate appreciation and application of facts also, as justice may demand.

(2018)2 SCeJ 1479

(2018)2 SCeJ 1288

 

Service matter  - Regularisation - Regularisation  after 10 years of service  - Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them - If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc. 

Held, the purpose and intent of the decision in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors., (2006) 4 SCC 1 was two-fold - To prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past -  The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed - This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head -  This is precisely what Umadevi (3) and Kesari (2010) 9 SCC 247 sought to avoid - The pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.  

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  • Service Matter – Appointment on Compassionate Ground – Son of the petitioner was adopted later  on after the death of husband of the petitioner, which is not a ground to  claim such appointment unless the scheme provides - Application was  moved after a long delay and the petitioner has no right much less a legal right to ask for an appointment - However, there is no difference between a son and adopted son adopted after a period of 15 years of death of the deceased employee - Rejection order was never challenged – Even in this petition said order has not been challenged. (2018-1) PUNJAB LAW REPORTER
  • Service Matter - Examination held by the police department for being brought on the promotion list - Using mobile phone - It was an on-line test and there was no paper which could have been seize or a note could have been recorded - If that is so then any note which is recorded on a piece of paper at any time could be treated as substantive evidence - Oral testimony of witnesses qua usage of mobile phone was rightly accepted by the Inquiry authority. (2018-1 ) PUNJAB LAW REPORTER
  • Service Matter – It was incumbent upon the disciplinary authority to record the reasons for disagreement and an order which did not record any reasons was illegal – Civil Court set aside the punishment order – It cannot be said that it is a case of no evidence – In the circumstances the judgments of the   Courts below are modified - The finding that the punishment order is vitiated is maintained - The matter  is remanded back to the disciplinary authority for a fresh decision in accordance with law after considering all the points from the stage of submission of inquiry report.  (2018-1 ) PUNJAB LAW REPORTER
  • Service Matter – Misconduct – Misconduct definition is not attracted where an employer fixes target and if employee fails to meet the target. (2018-2) PUNJAB LAW REPORTER
  • Service Matter – Petitioner had given an affidavit that he should be considered in the S.C. Category instead of PHC (Ortho) category – Initially he had qualified in the PHC category - The denial is thus not been justified especially keeping in view  that fact that the petitioner had applied for both the categories and had been short-changed and asked to apply only against the one in which he had not qualified - Admittedly, two posts are still lying vacant for physically handicapped candidates - In such circumstances, this Court is of the opinion that the petitioner's case be re-considered for appointment to the post of steno-typist (Hindi) in the Physically Handicapped Category ortho. (2018-1) PUNJAB LAW REPORTER
  • Service Matter – Recovery from employees belonging to claim III – Had been granted the benefits of adhoc service for the purpose of seniority and during the pendency of the writ petition challenging the seniority list, on the basis of affidavits filed by them, the consequential benefits in view of the seniority list, which was under challenge, were granted to them, which were in the form of salary, emoluments and retiral benefits – Subject to their furnishing undertaking that in case the emoluments being paid to them are not in consonance – Corporation shall be authorised to make recovery from their salary/retiral benefits – Petition dismissed. (2018-1) PUNJAB LAW REPORTER
  • Service matter  - Regularisation - Regularisation  after 10 years of service  - Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them - If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc.Held, the purpose and intent of the decision in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors., (2006) 4 SCC 1 was two-fold - To prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past -  The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed - This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head -  This is precisely what Umadevi (3) and Kesari (2010) 9 SCC 247sought to avoid - The pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench. (2018)2 Supreme Court eJournal 1288
  • Service Matter – Respondent being permanent employee is entitled to have opportunity to produce the evidence, whereas, the petitioner had collected the evidence behind the back of the respondent -  Vigilance Inspector had collected the material evidence behind the back of the petitioner through Headmaster of the Govt. Primary School, Ber Khurd, Ludhiana to the extent that date of birth of the respondent is 6.2.1971 and not 11.12.1964 - Otherwise, the Headmaster, has not been cited as witness in the inquiry so also he has not been examined and cross-examined so as to appreciate his statement that date of birth of the respondent is 1971 and not 1964 – Award upheld. (2018-3) PUNJAB LAW REPORTER
  •  Service Matter – Selection and appointment to the post of Sub-Inspector (Overseer) – Petitioner has suppressed the factual aspects relating to facing of criminal proceedings – Even though he has been acquitted that does not absolve suppression of fact relating to pendency of criminal proceedings – He may not be a good candidate. (2018-3) PUNJAB LAW REPORTER