Dear Mr Harikrishnan/Mr Essykkr
I went through this discussion and also read the judgment referred to by Mr Harikrishnan.
There is something called discharge simpliciter .
"Discharge simpliciter in relation to employment law is a termination simpliciter i.e. termination of services as per terms of contract. it is usually used when the employer excercises his right under the employment contract in good faith, on loosing faith. It is distinguished from dismissal as latter is termination by way of punishment. However if the discharge simpliciter is challenged in the court of law, court can lift the veil and if the discharge is victimisation, unfairlabour practice, or punishment for any misconduct, malfide and the said action has been resorted to dispense with the principles of natural justice of hearing the employee concerned before punishing him, such termination can be set aside. Where the employer satisfies the court that action has been taken in good faith then the discharge is upheld."
It is generally used where the employer has lost trust on the employee.
The Case referred to by MrHariskrishnan is about an employee who was not cooperating in the enquiry proceedings. Under these circumstances where an employee does not cooperate and keeps giving trouble which are recorded by the enquiry officer, there are two options left to the Employer
1. Initiate one more disciplinary action
2. Resort to discharge simpliciter
It is the second option that this management has resorted to. This judgement per se does not give a right for dismiss an employee without an enquiry. In fact they have initiated enquiry, could not complete and then decide to discharge him.
Courts have always held that if a stigma is attached on termination of service in the ofrm of a punishment, it must precede and enquiry. A discharge does not attach a stigma and it could be due to many reasons which includes health gorunds.
I agree with Mt Essykkr that this judgement perse does not give any right for the employer to punish an employee without an enquiry. This case must be read with specific facts and should not be applied as a ratio decidendi .
T Sivasankaran
From India, Chennai
368I went through this discussion and also read the judgment referred to by Mr Harikrishnan.
There is something called discharge simpliciter .
"Discharge simpliciter in relation to employment law is a termination simpliciter i.e. termination of services as per terms of contract. it is usually used when the employer excercises his right under the employment contract in good faith, on loosing faith. It is distinguished from dismissal as latter is termination by way of punishment. However if the discharge simpliciter is challenged in the court of law, court can lift the veil and if the discharge is victimisation, unfairlabour practice, or punishment for any misconduct, malfide and the said action has been resorted to dispense with the principles of natural justice of hearing the employee concerned before punishing him, such termination can be set aside. Where the employer satisfies the court that action has been taken in good faith then the discharge is upheld."
It is generally used where the employer has lost trust on the employee.
The Case referred to by MrHariskrishnan is about an employee who was not cooperating in the enquiry proceedings. Under these circumstances where an employee does not cooperate and keeps giving trouble which are recorded by the enquiry officer, there are two options left to the Employer
1. Initiate one more disciplinary action
2. Resort to discharge simpliciter
It is the second option that this management has resorted to. This judgement per se does not give a right for dismiss an employee without an enquiry. In fact they have initiated enquiry, could not complete and then decide to discharge him.
Courts have always held that if a stigma is attached on termination of service in the ofrm of a punishment, it must precede and enquiry. A discharge does not attach a stigma and it could be due to many reasons which includes health gorunds.
I agree with Mt Essykkr that this judgement perse does not give any right for the employer to punish an employee without an enquiry. This case must be read with specific facts and should not be applied as a ratio decidendi .
T Sivasankaran
From India, Chennai
Dear Mr Sivasankaran
You have stated in your post that "Courts have always held that if a stigma is attached on termination of service in the form of a punishment, it must precede and enquiry. A discharge does not attach a stigma and it could be due to many reasons which includes health gorunds." You have also stated that in the case referred to by me the management had discharged the employee.
I invite your attention to paragraph 10 of the judgment referred to by me. I have extracted this paragraph for ready reference.
"10. Taking note of the conduct of the petitioner and the prevailing tense atmosphere in the Institute, the respondents dispensed with the enquiry as it was not reasonably practicable to hold the same and dismissed the petitioner from service in terms of Rule 19(ii) of the CCS (CCA) Rules by an order dated 25.02.2003. In the said order, the misconducts committed by the petitioner were listed out. The misconduct committed on 04.02.2003 became the focal point to come to the conclusion that any further enquiry will be impracticable. The written complaints made against the petitioner became materials on which the respondents came to the conclusion that charges have been proved and since the respondent Institute being an educational institution and the petitioner had scant regard for any discipline as he had exhibited contempt to his superiors and colleagues, it was thought that removal from service would be proper punishment. The petitioner filed a writ petition being W.P. No. 7510 of 2003 challenging the order of removal.."
According to para 10 of the judgment, the employee in the above referred case was punished for a specific misconduct. Punishment for a misconduct, s you would agree is a stigma. But the dismissal was not preceded by an enquiry and the employer has specifically stated that it was impracticable to proceed with the enquiry. Can this action of the employer in imposing a punishment of removal from service be regarded as discharge simpliciter.
Regards
From India, Madras
You have stated in your post that "Courts have always held that if a stigma is attached on termination of service in the form of a punishment, it must precede and enquiry. A discharge does not attach a stigma and it could be due to many reasons which includes health gorunds." You have also stated that in the case referred to by me the management had discharged the employee.
I invite your attention to paragraph 10 of the judgment referred to by me. I have extracted this paragraph for ready reference.
"10. Taking note of the conduct of the petitioner and the prevailing tense atmosphere in the Institute, the respondents dispensed with the enquiry as it was not reasonably practicable to hold the same and dismissed the petitioner from service in terms of Rule 19(ii) of the CCS (CCA) Rules by an order dated 25.02.2003. In the said order, the misconducts committed by the petitioner were listed out. The misconduct committed on 04.02.2003 became the focal point to come to the conclusion that any further enquiry will be impracticable. The written complaints made against the petitioner became materials on which the respondents came to the conclusion that charges have been proved and since the respondent Institute being an educational institution and the petitioner had scant regard for any discipline as he had exhibited contempt to his superiors and colleagues, it was thought that removal from service would be proper punishment. The petitioner filed a writ petition being W.P. No. 7510 of 2003 challenging the order of removal.."
According to para 10 of the judgment, the employee in the above referred case was punished for a specific misconduct. Punishment for a misconduct, s you would agree is a stigma. But the dismissal was not preceded by an enquiry and the employer has specifically stated that it was impracticable to proceed with the enquiry. Can this action of the employer in imposing a punishment of removal from service be regarded as discharge simpliciter.
Regards
From India, Madras
Dear Mr.Esskyyr
1.The judgment referred to by me nowhere says that only in cases of allegations of serious nature the enquiry could be dispensed with.
2.I request you to read the judgment of the Honourable Supreme Court in Workmen of Firestone Tyre and Rubber Co of India (Pvt) Ltd., vs Management 1973 I LLJ 278. This judgment refers to the consequences in cases where the employer had dismissed a worker without conducting an enquiry. This judgment has not yet been over ruled or modified and had been followed in the subsequent decisions of the Honourable Supreme Court and the various High Courts. The main points of the judgment find a place in the judgment referred to by me in this thread. This judgment and the subsequent judgments in which this judgment was considered by the Honourable Supreme Court do not say that a worker could be dismissed without enquiry only for serious misconducts.
With regards
From India, Madras
1.The judgment referred to by me nowhere says that only in cases of allegations of serious nature the enquiry could be dispensed with.
2.I request you to read the judgment of the Honourable Supreme Court in Workmen of Firestone Tyre and Rubber Co of India (Pvt) Ltd., vs Management 1973 I LLJ 278. This judgment refers to the consequences in cases where the employer had dismissed a worker without conducting an enquiry. This judgment has not yet been over ruled or modified and had been followed in the subsequent decisions of the Honourable Supreme Court and the various High Courts. The main points of the judgment find a place in the judgment referred to by me in this thread. This judgment and the subsequent judgments in which this judgment was considered by the Honourable Supreme Court do not say that a worker could be dismissed without enquiry only for serious misconducts.
With regards
From India, Madras
Mr.Sivasanakarn has well explained the distinction between a discharge simpliciter and dismissal and there is no dispute about it. However Mr.Harikrishnan's point of view that an employee can be dismissed by way of punishment for a misconduct even without conducting enquiry despite the fact that such dismissal is stigmatic, has also substance and force in it.However certain conditions need to be fulfilled. 1) It shall be impractical to conduct an enquiry against the delinquent employee 2) The misconduct is such that it merits dismissal and 3) there shall be provison in service rules or standing orders enabling the employer to dismiss an employee without enquiry when it is,in it's opinion, not practical to conduct one.The law is well settled on this issue permitting in exceptional cases to dispense with enquiry and impose penalty.That's how , in my view, one can understand the implication of the judgment.
B.Saikumar
HR & Labour Law advisor
Mumbai
From India, Mumbai
B.Saikumar
HR & Labour Law advisor
Mumbai
From India, Mumbai
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