SERVICE LAW PROJECT

S ERVICE L AW P ROJECT TOPIC: TERMINATION OF PERMANENT EMPLOYEE

SUBMITTED BY: Anjali Choudhary L/116

SUBMITTED TO: Ms. Nidhi Assistant Professor

B.B.A. LL.B.

School of Law

VII Semester

Raffles University

School of Law

Neemrana

Raffles University

Rajasthan

TERMINATION OF PERMANENT EMPLOYEE SERVICE LAW PROJECT WORK

TABLE OF CONTENTS

Introduction Concept of Termination No Termination Without Reason Approval of Appointment and Termination Conclusion

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TERMINATION OF PERMANENT EMPLOYEE SERVICE LAW PROJECT WORK

INTRODUCTION The service of a permanent employee cannot be terminated without complying with the principles of Natural Justice and except for a reason. Any provision in a contract of employment or in the service rules which confers power on the employer to terminate the services of an employee by issuing a notice or payment in lieu of such notice without assigning any reason and without giving any opportunity of being heard will be violative of article 14 and 16 of the constitution.

CONCEPT OF TERMINATION 

Termination means bringing a severance of relationship between employer and employee.

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Condition precedent for termination is a legal and valid appointment

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These principles are applicable only in case of permanent employees only.

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Provision for termination of services by giving notice or payment in lieu of notice is unconstitutional because it constitutes an invasion into the right of a permanent employee to continue in service.

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In Purshotam lal dhingra v. Union of India,1 It was held that when a person employed substantively to a permanent post in government service, two rights emerge: 1. Right to hold post is acquired until the age of retirement. 2. In absence of contract express or implied or a service rule, the employee cannot be terminated without undertaking proceeding with respect to such removal which are in compliance to Art. 311. However, if service rules exist no compliance to Art .311 is required.

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In Moti Ram Deka v. General Manager, North East Frontier Railway,2 it was observed that Rules148(3) and 149(3) of rules contained in Indian Railway Establishment Code provided that the services of railway servant could be terminated by giving him a notice or paying him in lieu of such notice.

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One of the contentions raised by Union of India was that a civil servant holds office during the pleasure of the president and of the governor and could be terminated by mere exercise of such pleasure at any time.

1 2

AIR 1958 SC 36 AIR 1964 SC 600 Page 3 of 6

TERMINATION OF PERMANENT EMPLOYEE SERVICE LAW PROJECT WORK

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This contention was rejected by the court and said that provision of Article 310(1) are subject to Article 311(2), the court proceeded to determine as to whether termination under r.148(3) could amount to removal within meaning of Article 311 and while determining this question the court brought out the nature of right which a permanent government servant enjoy.

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The court was of the view that a person who substantively holds a permanent post has a right to continue in service subject to rules of superannuation or compulsory retirement.

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Termination of services of permanent employee otherwise than on ground of superannuation or compulsory retirement amounts to his removal and so if termination is under rules 148(3) and 149(3) contravenes Article 311(2) and is invalid.

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In West Bengal State Electricity Board v. Desh Bandhu Ghosh,3 Regulation 34 of the Board’s service regulations provided that the services of a permanent employee could be terminated by serving three months notice or on payment of salary corresponding to such notice. Applying Moti Ram case ruling court held that it apply to statutory corporations also ad hence this regulation was invalid.

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In Delhi Transport Corporation v. DTC Mazdoor Congress,4 the Court held that Regulation 9(b) of Delhi Road Transport Authority Regulations, 1952 which conferred power on Corporation to terminate the service of an employee or one months notice or pay in lieu of was unconstitutional.

NO TERMINATION WITHOUT REASON 

An officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defense or explanation.

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In Ridge v. Baldwin,

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Sec. 191(4) of the Municipal Corporation Act, 1882 authorized the

Watch Committee to suspend or dismiss a constable whom they think negligent in the discharge of his duties or otherwise unfit for the same. The House of Lords upheld the contention on behalf of chief constable that the resolution of the watch committee summarily dismissing him was void since he had no notice of the grounds on which the committee proposed to act.

3

AIR 1985 SC 722 AIR 1991 SC 101 5 1963(2) All ER 66 4

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TERMINATION OF PERMANENT EMPLOYEE SERVICE LAW PROJECT WORK

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The Supreme Court has declared the law in similar terms but mainly drawing upon Arts. 14 and 16 of the Constitution.

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In Bharat Coking Coal Limited v. Babulal,6 it was explained that how the power of termination under such clauses could be resorted to by-pass the necessity of disciplinary proceedings. In this case, two senior mining officers were found by a fact-finding committee to be responsible for an accident because of dereliction of duty and based on that report their services were terminated without giving them any opportunity of being heard under r. 12.4(c) of the Common Coal Cadre, 1974 which provided that services of an employee could be terminated by giving three months notice or pay in lieu of such notice.

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The Supreme Court held r. 12.4 (c) to be invalid and directed the authorities to hold an enquiry consistent with principles of natural justice.

APPROVAL OF APPOINTMENT AND TERMINATION 

In certain cases law requires that termination of services of an employee should be approved by a third authority.

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In Kunda Motiram Bodalkar v. Swami Vivekanand Shikshan Sanstha,7 Section 21 of Uttar Pradesh Secondary Education Services Commission for termination of services of teachers of colleges. Such an approving body or person while deciding whether or not to grant approval of the removal of a teacher, has necessarily to go into the merits of the case and apply its mind independently to the question whether the evidence on record justify the removal and in doing so it has to effectively scrutinize the material and apply its mind carefully to the facts on record.

CONCLUSION 

Power of Termination of services can be exercised only in consonance with the principles of natural justice.

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There can be no rule of automatic termination without affording an opportunity of making representation.

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(1996) 10 SCC 295 (2010) 6 SCC 712 Page 5 of 6

TERMINATION OF PERMANENT EMPLOYEE SERVICE LAW PROJECT WORK

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The principles of natural justice were developed to advance substantial justice. They are not meant for rigid application irrespective of real demands of fairness in a particular case.

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Thus, if a rule provide for automatic termination of service on ground that the employee had been convicted and sentenced for an offence by a criminal court, his grievance that I such termination was violation of principal of natural justice will not sustain.

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