Wrongful dissmissal/ termination
Rajesh Tandon
(Querist) 11 August 2012
This query is : Resolved
1. I'm an Army officer writing to you. I take this opportunity to write to you in connection with a query regarding chances of wrongful dismissal/termination of service of a very honest employee and to enquire from you about the legal safeguards available to the employee.
2. Iam attaching the whole case query document with this message kindly render suitable legal advice.
Guest
(Expert) 11 August 2012
No attachment could be found. If the contents of the attachment are not voluminous, you can write the whole background problem here on this page, itself.
Rajesh Tandon
(Querist) 11 August 2012
Thank you Mr Dhingra for your promptness in responding. I am therefore mentioning the details though lengthy but for querry from all experts & to avoid a nonattachment problem of documents
DETAILS OF THE CASE
1. I'm an Army officer writing to you. I take this opportunity to write to you in connection with a query regarding chances of wrongful dismissal/termination of service of a very honest employee and to enquire from you about the legal safeguards available to the employee.
2. In Our Static Headquarters, where in, there are no actual fighting operations going on and the work involved is more of administrative nature, a couple of retired Army Junior commissioned officers (JCOs) like Subedar/ Naib Subedar have been employed in places of clerks based on the nature of their clerical experience while they were in service. Sometimes an education JCO is also employed in a job suitable to his career. I hereby discussing with you a case of Education JCO
3. Brief background- The same is as under:-
a) Generally it has been observed that Education JCOs in Army are better off in terms of their knowledge and awareness as compared to other JCOs. Education JCOs are directly recruited as Havaldar, instead of being recruited as Sepoy. The reason being they are already graduates. A number of them do post graduation during their service and subsequently promoted to Naib Subedar and Subedar. Here is one such case of an Education JCOs(Retired Subedar) which I want to discuss with you. The Education JCO has been employed in ex-servicemen(ESM) Helpline.
b) The concept of ESM Helpline-The ESM helpline is basically meant to help and guide the ex-servicemen in in order to ameliorate their problems. Though there are Zila Sainik Boards & Rajya Sainik Boards which are common bodies meant to look into the problems and grievances of ex-servicemen and take up issues related to their problems with civil administration. However, these organisations have not delivered the desired results to help out the ex-servicemen. That is why this concept of ESM helpline came into being. Major issues pertaining to pension and claims/notifications pertaining to ex-servicemen regarding their personal occurrence like birth of child after marriage or matter of joint notification with the wife in pension payment order (PPO) are looked after by Principle Controller of Defence Account(PCDA), Allahabad and respective record offices in respect of personal below officer rank.
4. The said Education JCO has retired from the service and subsequently put on this job of JCO in charge of of ESM helpline extension counter in September 2011 ,wherein main ESM helpline counter is looked after by me in the capacity of D irector of the ESM helpline. There was no contract agreement between the static headquarter of Army and this Education JCO at the time of his employment. It was merely because of seeing his good performance while he was in service in the same headquarter that he was employed, post retirement as JCO in charge of of ESM helpline extension counter. He has been a very honest and sincere JCO since when I have taken over the duties of director, ESM helpline(since November 2011). In the month of January/February, a senior officer has been posted here, who is number two in seniority in the static headquarter where I'm working. It is almost 6 months since he has been observing the performance of the said Education JCO. There was never any problems from the side of this senior officer towards the said Education JCO. Of the late, it seems that somebody has given him some wrong feedback. There are suggestions/complaint registers of ESM helpline of( different kind of the matters being enquired into by ex-servicemen and guidance/ assistance rendered) put up to this senior officer. Suddenly, he has pointed out one or two genuine mistakes, where the ex-servicemen were not properly guided by the said Education JCO. It was not done deliberately, but probably ignorance of a certain rule positions by the said Education JCO . The senior officer has said that he must know the rule books by heart. Secondly, he said that the said Education JCO should not take it as a punishment, but take it as a matter of learning .Yes, I agree that the staff should know their job well. I was asked to conduct his test after giving him 10 days to study a booklet. I took this test and he scored 60% marks. Suddenly I found the stance of the senior officer changing. He said that it means that he is still short from the ESM helpline standards by 40% .Give him other booklet of pension matters to study and take his retest . The senior officer further said that the said Education JCO should score 100%. Even if he scores one mark less that means one ex-servicemen goes unsatisfied & that he cannot guide him properly. I would throw him out of the job and we will hire somebody else. I perceive this as a well-planned move to throw out an honest Education JCO, possibly to place somebody else of the choice of the senior officer. Imagine the honesty of the education JCO that after evaluating his papers when I showed him as performance, he told me that he had attempted half part of one question which I missed out while evaluating and subsequently, I reevaluated and calculated his marks and he further lost another 21/2 mark. How can somebody suddenly change stance from his initial remark that this should not be taken as a punishment, but should be taken as method of learning and now when an employee scores 60% marks which is above average performance, he is told to score 100%, otherwise he will be declared unfit for the job. Is it humanly possible to score hundred percent for every human being? What is the guarantee that even after scoring 100%, a chap may still miss out on a certain pension rule position or any other government policy since there are Plethora of government rules, policies issued from time to time and it is virtually not possible to remember all these things by heart. One should always know to refer the books/manuals/regulations/policies/government orders. There are times where in the unique cases which are not covered by any rule book like (one a son and wife of an ex-servicemen who died and now the wife is not getting pension on the grounds that she should get a certificate from the factory where this ex-servicemen was re-employed after retirement from Army that she is no more drawing the pension of that factory and then only Army would give her the army pension. The ex-servicemen has already died around 5 to 6 years back, the factory has closed somewhere in decade of 80s. Solution to such problem can never be found in rulebook. One has to apply himself by seeking certain information under RTI act from the ordnance factory board about the closed factory and the fate of their employees)
5. Since the Education JCO is no more a serving Army personnel, he is no more governed by Army act. He is basically a civilian now. The standard operating procedure(SOP) issued by this Static Headquarter nowhere mentions that Education JCO is required to remember each and every rule position by heart. The basic job laid down as per SOP is with a registering of complaints and guiding the ex-servicemen. No contract has been signed with the Education JCO.
6. My queries:-
a) What is the concept of helplines operating in India. Any court judgements on this account or pertaining to the employees of such helplines?
b) What are the legal safeguards for this Education JCO.
c) If he has delivered above average performance by scoring 60% marks can he still be shunted out based on the whims and fancies of a senior officer? Incidentally the Education JCO is presently being given RS 7000/-(7000 only) per month.
d) If he is supposed to know all rules and regulations, then what about principle controller of defence accounts(PCDA), Allahabad, various record offices, Zila/District soldier boards whose mandate is to perform their respective their charter of duties. I think one should know how to refer a guide of booklet for reference about various rule positions rather than remembering by heart. Af one is not able to do so, then throwing him out of the job seems highly unreasonable.
e) Similarly, a query about other retired Army Junior commissioned officers (JCOs) like Subedar/ Naib Subedar who have been employed in places of clerks based on the nature of their clerical experience. They have been just picked up, based on their interview. Sometimes there has been a contract. Sometimes without the contract. Even if there is a contract it is between the static headquarter and the individual with no contractor in between. Therefore please clarify that for any such employees, be it with contract or without contract would they be considered as casual workers?
f) Such Army Junior commissioned officers (JCOs) like Subedar/ Naib Subedar who have been employed in places of clerks based on the nature of their clerical experience are being paid monthly salary but that is less than Nerric rates published by Station Headquarters of Army, which are often based on minimum rate of wages published by various state governments. I do not know whether the concept of nerric rates or minimum rate of wages for skilled/highly skilled workers i.e clerks/typist/stenographers is applicable for such clerks who have been employed in the above manner.
g) If there is gross violation of labour act, and if these are applicable to such employees, then what are the method of complaint like district Labour officer/Labour Commissioner, and so on till the Labour Ministry?
h) Which all labour laws are applicable to such clerical employees if their number is between 10 to 20. Are such establishments of Army, (wherein such retired personals nor civilians working as clerks in offices and employees of CSD canteen)covered under labour law for for the matter of only those civilian employees?
Guest
(Expert) 11 August 2012
Dear Mr. Tandon,
Knowledge of 100% ruling is never possible for anyone, even your senior. He would also fail on his own set target if put to test. You should not be so sentimental about the individual JCO. Based on the instructions of the senior, by referring to his own instruction, better put up a formal proposal before him to take a policy decision of prescribing a test for every one proposed to be posted on such a job and to score 100% in the test to qualify for thatt job. The officer would never approve said proposal.
However, your queries are replied as under:
a) No common yardstick is prescribed. Every organisation has to prescribe its own yardstick according to the requirements of the users of helpline.
b) No legal safeguard with particular reference to retired JCO or any contractual employee unless there is any violation of the terms of appointment on the part of the employer. You may therefore need to check the terms of appointment of the retired JCO. However, the concerned JCO can challenge the termination order with reference to the unwritten instructions of the officer and quoting the instances of other JCOs put to work merely on interview basis, like him.
c) Normally, it is OK for above average performance. Rest he can learn on-t-job, as per the requirement of his post. To tackle the whims and fancies of the senior officer, you can put up a proposal as suggested by me, which he would definitely not approve, as nobody would qualify for the job.
d) That is beyond your scope to challenge. You can simply make a passing reference of duties and responsibilities of other offices in your note to him for review of the instructions of the officer. Of course, the incumbent of the post is supposed to have the ability to appropriately refer the manuals, orders and instructions. Moreover, any helpline is general guidance centre.
e) You can quote such instances to the officer, if you want to put up your note for review of his instructions.
f) For that purpose, your will have to refer to your organisations rules and orders on re-employment of retired defence personnel to be read with the minimum wages act.
g) Instead of a generic question, you could better have pointed out about the nature of gross violation of labout acts, if you feel like that. Requirements of all the labour acts cannot be explained in brief.
h) Cannot be stated unless the rules of re-employment of such employees are explained in detail.
Rajesh Tandon
(Querist) 11 August 2012
Dear Mr Dhingra,
1. I'm extremely thankful to you for your prompt and detailed response which puts me wise on so many accounts.
2. However, nerric rates are published by Station Headquarters of Army, which are often based on minimum rate of wages published by various state governments. These are based on board of officers which declare the nerric rates based on rates obtained from Labour office/regional Labour office in respect of unskilled/skilled/highly skilled workers in respect of various industries for zone, A,B, &C.
3.These clerical staff are being paid on a monthly basis by system of cheques issued to them of the bank branch in which the static headquarter has got its account. In fact, when these clerks which have been talked about & have been re-employed, they are no more under Army rules and regulations, their status is of civilian clerk(but not on permanent employed civilian clerk like any other government Department), which implies that they are casual workers.
4.Eventually, all these clerks happen to be paid less than monthly salary declared vide Station order of nerric rates. Therefore, the implied version is that there is gross violation of minimum wages act. If that be so, what is the complaint mechanism to various labour department officers?
5. Would the education JCO which has been discussed in my query fit into the category of highly skilled worker?{since Education JCOs are good in translating English to Hindi and vice versa reasonably well. He notes down the complaints/grievances/suggestions of ex-servicemen received in raw form in Hindi as verbally expressed by aggrieved ex servicemen and puts up the same translated into reasonably acceptable form of good English on the registers maintained). In the present case, he is being paid Rs 7000/- as against monthly payment of Rs10,000/(+) for highly skilled worker.
Guest
(Expert) 12 August 2012
Unless you are definite about some specific instant of gross violation of , it would not be possible to suggest any solution.
However, may the post-retirement employed workers be casual workers/ civilians and may not be regulated by army rules, but every organisation has to follow certain rules for re-employment of the retired employees. If they are treated as civilians, they must be appointed according to some rules framed by the central Government for re-employment of retired employees. So, you need to check such rules. Normally, as per re-employment regulations, a re-employed worker cannot draw re-employed salary and pension more than what he was drawing as last pay before retirement. As such his salary is fixed by deducting pension.
So, the aspect of pay fixation is taken care of in consultation with the Financial Advisors/ CDAs and audit also takes note about that if any violation of the condition of minimum wages happens at any level.
Rajesh Tandon
(Querist) 12 August 2012
Thank you profusely for all the Help. Regards.
Guest
(Expert) 12 August 2012
You are welcome.
