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
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