Misconduct Issue
Tirthankar Pal
(Querist) 24 November 2010
This query is : Resolved
Can a failure in an departmental examination of an organization be treated as a misconduct?
Can the employer terminate the employee on the basis of results in examination alone without regards to the excellent documented annual performance?
Khaleel Ahmed Mohammed
(Expert) 24 November 2010
More details required, such as organisation means government or private?
Failure in the deparmental test does not constitute misconduct.Termination from employment depends on the terms of services, if the terms required the success in the departmental exam for the employee to continue the post, if the eemployee failed, then the employer can terminate on this ground.
Devajyoti Barman
(Expert) 24 November 2010
Yes if your employer is the Govt. then its Rules and Regulatons should not provide such Rule that falure to pass the departmental test would amount to miisconduct though it may be a reason behind the termination of the job.
R.Ramachandran
(Expert) 25 November 2010
There is more to it than what Mr. Thirthankar is saying. No one would be terminated for not passing the departmental examination, unless passing of such departmental examination is a pre-condition for continuance in service.
Advocate. Arunagiri
(Expert) 25 November 2010
Failure in departmental exam can not be treated as misconduct. He cannot be terminated for that reason.
Tirthankar Pal
(Querist) 25 November 2010
Dear Experts, Thanks for your replies.
What can be the legal action taken in such cases and what are the documents needed, to file a case in the court? The organization is a private software development firm.
Kirti Kar Tripathi
(Expert) 25 November 2010
no, it is not misconduct but certainly it is a condition for employment. if a candidate fails to complete the basic requirement, he has no right on employment and his services are liable to be terminated.
Tirthankar Pal
(Querist) 26 November 2010
Dear Experts,
1) How would you prove that passing departmental examination is a basic requirement and is not an advanced requirement like promotion?
2) The organization has maintained in press that this exams are purely for promotional activities and yet had sacked people for not passing the exams.
3) How would you certify and benchmark the organizations internal examinations against the external industrial examinations, for the same examination topics, that are duly recognized and widely accepted all over the world?
M V Gupta
(Expert) 28 November 2010
If the examination in question was only for promotional purposes, failure in the test cannot be a ground for dismissal. Did your employer cite in the order of dismissal that you have failed in the test and therefore are dismissed from the service. Then you have a good case to appraoch the labour court for reinstatement in the service with back wages. I presume you are a workman as defined in the ID Act.
Tirthankar Pal
(Querist) 29 November 2010
Thanks for the replies Experts. The concerned person is one of my closest friend who have been dismissed from service due to failure in examinations. He is a Software Engineer by profession and is a workman by definition, as per ID Act, as he has no supervisor role.
We would be taking up the case soon.
