Service Law Part 3

Summary of Question-   Rejection of Study Leave

Question-  Whether it is in the unmindful discretion of  an Employer to reject Study Leave.

 Answer –  No.  It is true that a leave including Study leave is not a matter of right of any   employee but rejection of Study Leave by the authority of the employer competent to take decision must be logical and mindful. Under Article 226 of the Constitution of India, High Court is empowered to examine whether decision of the competent authority is arbitrary

Rationale-

 
1. A Division Bench of Hon’ble Delhi High Court in LPA No.482/2012,  decided on 11 September, 2012 observed and held:

"20. Though we must admit that the thought of letting the appellant complete his higher education and of this Court not coming in the way thereof has crossed our minds also but the logical side of our brain, for the following reasons, tells us to decide otherwise.

i. As the term `study leave' denotes, it is a permission for absence from employment or duty or a authorized absence and thus cannot be claimed as a matter of right. Without permission or authorization there can be no study leave.

ii. Merely because an employee may be eligible for leave does not bind the employer to grant such leave. The employer, in taking decision on an application of leave is entitled to consider, not only the eligibility of the employee for leave but also other factors as to its own functioning and if does not find it convenient or practical or conducive to its own affairs to grant leave, is entitled to refuse the same. It is the prerogative of the employer to act according to the exigencies of the situation, keeping in view the best interest of administration. The paramount consideration in granting leave, for an educational institution, is not only the convenience of the teacher but the welfare of the students. The authority which is to sanction leave, can take into account all the relevant facts and either grant or refuse leave.

iii. The employer herein being amenable to writ jurisdiction, this Court, in exercise of powers of judicial review is only to see whether refusal of the leave can be said to be arbitrary, discriminatory or malafide and is otherwise to not sit in appeal over the decision of the employer in this regard. It is after all the employer who has to manage its affairs and decide whether it is convenient or not to grant leave of absence and the Court cannot interfere therewith.

.........................................................."


2.  In this connection, a Division Bench decision of the Hon’ble Patna High  reported in 1991(2) PLJR  is also relevant in view of which study leave cannot be granted as a matter of right but rejection must not be unmindful on the part of the competent authority . This case was related to  Govt. Doctor seeking study leave for Post Graduation/specialization. Some of the observations made by the Hon'ble High Court are quoted below:

" It is too late in the day to contend that the attainment of higher qualification or specialisation in a particular subject would not be in public interest. We are living in an age of specialisation and the Medical Science is one branch, which has made tremendous strides abroad mainly on account of better facilities for getting specialised training. In this background, it is difficult to countenance this stounding proposition that grant of study leave for attaining speciality in a particular subject would not be in public interest"

"The Government has obviously acted unmindfully of its power as contained in the aforesaid rule while rejecting the request for grant of study leave. The question, therefore, that next arises for consideration is whether this Court in exercise of its writ jurisdiction should issue appropriate order or direction directing the concerned authority to grant study leave or not. Learned Counsel for the State has argued that the grant of leave being discretionary in nature, this Court has no jurisdiction to issue any mandamus in the matter. I regret my inability to agree to this contention. The Supreme Court in The Comptroller & Auditor General v. K.S. Jagannathan , after referring to the celebrated observations of Justice Subha Rao AIR 1966 S.C. 81 (sic) that Article 226 is designed "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country, "had this to say while laying down the scope of power of this Court under Article 226 of the Constitution in such matters:--
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised to discretion conferred upon it by a Statute or a rule or policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, .in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised the discretion."

 

Summary of Question- Subsequent Acquittal in criminal case   

Question- Whether subsequent Acquittal in criminal case can be a ground for appointment.

Answer –  No.

Rationale-

In the  case reported in 1996 (11) SCC 605, short fact was that  the respondent appeared for recruitment as a Constable in the Delhi Police Services .  Though he was found physically fit through endurance test, written test and interview and was selected provisionally; his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected.  Apex Court  observed ad held as quoted below:

“The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is: whether the view taken by the Tribunal is correct in law?

It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was physically found fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as Constable to the disciplined force. The view taken by the appointment authority in the background of the case cannot be said to be unwarranted.

The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing Authority, therefore, has rightly focussed this aspect and found him not desirable to appoint him to the service.”

 

Summary of Question-   Disclosure by Candidate about criminal case  

Question-  Whether employer has right to consider a candidate’s  antecedents and  suitability when the candidate makes disclosure about criminal case pending against him/her (the candidate). 

Answer –  Yes.

Rationale-

1. In CIVIL APPEAL NO. 11356 OF 2018 decided on 26th. Nov. 2018, the Hon’ble Supreme Court observed and held:

" Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition."

 

1.1.  The  Appeal made by the employer was allowed by Supreme Court because the court found that there is nothing on record to suggest that the decision taken by the concerned authorities in rejecting the candidature was in any way actuated by mala fides or suffered on any other count. The Apex court held:

"The  decision on the question of suitability of the respondent, in our considered view, was absolutely correct and did not call for any interference. We, therefore, allow this appeal, set aside the decisions rendered by the Single Judge as well as by the Division Bench and dismiss
Writ Petition No.9412 of 2013 preferred by the respondent."

 

2. In CIVIL APPEAL No. 3046/2019 (THE STATE OF MADHYA PRADESH BUNTY), decided on 14th. March 2019,  the Hon’ble Supreme Court, after referring to earlier judgments ,  observed and held :

"The law laid down in the aforesaid decisions makes it clear that in case of acquittal in a criminal case is based on the benefit of the doubt or any other technical reason. The employer can take into consideration all relevant facts to take an appropriate decision as to the fitness of an incumbent for appointment/continuance in service. The decision taken by the Screening Committee in the instant case could not have been faulted by the Division Bench."

 

Summary of Question - Withholding of Pension

Question – Whether an employer can withhold pension.

Answer- An employer can withhold Pension only if there is provision to this effect in the service rule / pension  rule applicable to the employee. Even if there is a provision in the Service Rules (having statutory character)  for withholding of Pension , such withholding cannot be made by just an Executive Instruction if there is no specific provision in the Service Rules for withholding of pension by Executive Instruction.

Rationale-

1. In case of Central Government /  State Governments’ employees Service Rules, there remains specific provision by which the President / Governor is given right to withhold pension. Under Rule 69(1) of the CCS (Pension) Rules, 1972, the President has right, inter alia, to withhold, pension. Similarly, for example, Rule 10(1) of  West Bengal Services (Death –cum-Retirement Benefit) Rules, gives right to the Governor withhold pension.

2.  It is worthwhile to mention here a decision of the Hon’ble Supreme Court  in the case of  State of West Bengal vs. Haresh C. Banerjee & others [2006(III) LLJ 806] which was appeal against the order of the Hon’ble Calcutta High Court vide which the said Rule 10(1) was held to be ultras vires the provisions of Articles 19(1)(f) and 31(1) of the Constitution of India. High Court was of the view that the pension  was a property and its payment does not depend upon the discretion of  the Govt. ; pension is not a bounty payable at the sweet-will and pleasure of the Govt. and to receive pension is a valuable right of a Govt. is a  well–settled proposition. The Hon’ble Supreme Court observed that the question  is not about the deprivation of the said right by the Government by an executive order but is about the constitutional validity of Rule 10(1) providing for withholding of pension or part thereof in certain cases. The Apex Court set aside the judgment of the Hon’ble High Court to the extent it declares the said Rule 10(1) ultra vires

3. In State of Jharkhand vs Jitendra Kumar Srivastava reported in (2013) 12 SCC 210,  the question which had arisen  for consideration was  whether, in the absence of any provision in the Pension Rules, the State Government could withhold a part of pension and/or gratuity during the pendency of departmental/criminal proceedings ; The Hon’ble High Court answered this question in the negative and hence directed the Appellant to release the withheld dues ; Aggrieved by the High Court decision ,  the State of Jharkhand  preferred Appeal. The Apex Court referred to the Constitution Bench judgment  in Deokinandan Prasad v. State of Bihar reported in  (1971) 2 SCC 330 and observed and held as under:

 

“…..A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the Appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”

 

“It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the Appellant cannot withhold-even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.”

 

Summary of Question- Compassionate Appointment born from void marriage  

Question- Whether any condition, in an employer’s  Circular /Guidelines for Compassionate Appointment  excluding  children from  void marriage from being considered  for Compensation Appointment, is a  valid condition in the eyes of Law.

Answer –  No.

Rationale:

1. In CIVIL APPEAL No.12015 OF 2018 (UNION OF INDIA AND Vs. V.R. TRIPATHI ) , decided on 11 December 2018, the Hon’ble Supreme Court observed and held as under :

"The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution... "

".. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment  though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination."
                                                                                                                                                      [Emphasis supplied]

"...... The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries – legitimate children."

                                                                                                                                                      [Emphasis Supplied]

 

2. The Hon’ble Karnataka  High Court  in WRIT PETITION No.28676 of  2018 (S-RES), decided on 25th April 2019,  relied on the said judgment of the Hon’ble Supreme Court and allowed the Writ Petition directing respondent No.2 to re-consider the application of the petitioner.

2.1. Short fact of the case was that The petitioner objected to the  order dated 12.03.2018, passed by respondent No.2 (Bengaluru Development Authority) whereby, the application of the petitioner seeking appointment on compassionate ground was rejected on the ground that the petitioner was born out of the second marriage of late Varadegowda, who was an employee of respondent No.2- Authority.

 

3. A three judge Bench of the Hon’ble Patna High Court in LPA No. 1305 of 2013  (The Bihar State Electricity Board  vs Chadra Shekhar Paswan) dated the 18th April 2019, relied upon the said decision of the Hon’ble Supreme Court,  and observed and held as under:

"55. Apparently, the judgment passed in Union of India Vs. V.R. Tripathi (Supra) by the Supreme Court is contrary to the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra) as it has acknowledged the right to the child of the second marriage and has also held that while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules to lay down a condition, which is inconsistent with Article 14 of the Constitution. It has acknowledged the right to compassionate appointment to the child of second marriage under Section 16(1) and 16(3) of the Hindu Marriage Act…………………………………. The authoritative pronouncement of apex court on the point of compassionate appointment in V.R.Tripathi (Supra) eclipses the decision of the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra)……………………”

 

 

Summary of Question-  Cut Off Date for Enhanced / Revised  Pension

Question- Whether an employer can validly fix a cut-off date for enhanced / Revised Pension.

Answer –  No.  Where pensioners form one class, they (pensioners) cannot be differentiated in the matter of amount of pension that some pensioners are given Enhanced / Revised pension while  some other pensioners are deprived of such increase by fixing a cut-off date just based on the ground of financial burden on the employer. Such fixing of cut-off date is unreasonable, arbitrary, discriminatory and violative of Article 14 of the Constitution of India .

Rationale:


1.   Before the Hon'ble Supreme Court in CIVIL APPEAL NO. 10857 OF 2016       (All Manipur Pensioners Association vs. The State of Manipur) decided on the 11th. July 2019, facts, in short, were as under :


i. The State of Manipur  adopted the Central Civil Services (Pension)  Rules to be applicable to the State of Manipur.  Therefore, all  the government servants retired in accordance with the provisions of  the Pension Rules and after completing   qualifying   service   are   entitled   to   the pension/pensionary benefits.
 

ii.   Considering the increase   in   the   cost   of   living,   the   State   Government enhanced/revised the pension of its employees  with effect from 1.1.1996.  However, this revision in pension was  done differently, viz., for 14 employees who retired prior to  1.1.1996 and for employees who retired after 1.1.1996.  Consequently,  the State provided a lower percentage   of   increase   to   those   who   retired   pre­ 1996   and provided higher percentage of increase to those who retired post- 1996.  The Hon'ble Single Judge of the High Court held that such a classification was not permissible in  law keeping in mind the equality clause of the Constitution.   However, on an appeal, the Division  Bench of the Hon’ble  High Court reversed the decision  of  the  Single Bench and observed and held that as in the  present case the State does not have the financial resources  to pay uniform pension to all   the   retired   employees,   the   cut­off   date   fixed   by   the   State Government as  1.1.1996 for payment of revised pension to pre- 1996 retirees and post­ 1996 retirees cannot be termed to be unreasonable   and   irrational   in   the   light   of   Article   14   of   the Constitution of India.

2.  The  Hon’ble Supreme Court applied its earlier  decision given in the case of D.S. Nakara and others  vs. Union of India, reported in (1983) 1 SCC 305, on which Single Bench heavily relied upon.

3. The Hon’ble Supreme court also observed and held as under:

"Even otherwise on merits also, we are of the firm opinion  that there is no valid justification to  create two classes, viz., one  who retired pre-1996 and another who  retired post-1996, for the  purpose   of   grant   of   revised   pension,     In   our   view,   such   a  classification has no nexus with the  object and purpose of grant  of benefit of revised pension.  All the  pensioners form a one class  who are entitled to pension as per the pension rules. Article 14 of  the Constitution of India ensures to all equality before law and  equal protection of laws. At this  juncture it is also necessary to  examine the concept of valid  classification.  A valid classification  is truly a valid discrimination.   It is true that Article 16 of the  Constitution of India permits a valid  classification.   However, a  very classification must be based on a just objective.  The result  to be achieved by the just objective  presupposes the choice of  some   for   differential   consideration/treatment   over   others.     A classification   to   be   valid   must   necessarily   satisfy   two   tests.  Firstly, the distinguishing rationale has to be based on a just  objective and secondly, the choice of  differentiating one set of persons   from   another,   must   have   a   reasonable   nexus   to   the  objective sought to be achieved.  The  test for a valid classification  may be summarised as a distinction  based on a classification  founded   on   an   intelligible   differentia,   which   has   a   rational  relationship with the object sought to  be achieved.   Therefore,  whenever a cut-off date (as in the  present controversy) is fixed to  categorise one set of pensioners for  favourable consideration over  others, the twin test for valid  classification or valid discrimination  therefore must necessarily be  satisfied.  In the present case, the  classification   in   question   has   no   reasonable   nexus   to   the  objective sought to be achieved while  revising the pension. As observed hereinabove, the object and  purpose for revising the pension is due to the increase in the  cost of living.   All the  pensioners form a single class and  therefore such a classification  for   the   purpose   of   grant   of   revised   pension   is   unreasonable,  arbitrary,   discriminatory   and   violative   of   Article   14   of   the  Constitution   of   India.     The   State   cannot   arbitrarily   pick   and  choose from amongst similarly situated persons, a cut-off date for  extension of benefits especially pensionary benefits. There has to be   a   classification   founded   on   some   rational   principle   when  similarly situated class is differentiated for grant of any benefit."

".... Increase   in   the   cost   of   living   would   affect   all   the  pensioners irrespective of whether they have retired pre-1996 or  post-1996.  As observed hereinabove,  all the pensioners belong to one class. Therefore, by such a  classification/cut-off date the  equals are treated as unequals and  therefore such a classification  which has no nexus with the object and purpose of revision of pension   is   unreasonable,   discriminatory   and   arbitrary   and therefore   the   said   classification   was   rightly   set   aside   by   the learned   Single   Judge   of   the   High   Court....."

 

 

Summary of Question-  Promotion ; Un-communicated Adverse Annual Confidential Report (ACR)

Question- Whether it is legal for the employer / Management to consider  Un-communicated Adverse Annual Confidential Report (ACR)  to deny  promotion.   
 

Answer –  No.  Un-communicated Adverse Annual Confidential Report (ACR)  cannot lbe  considered  by the Employer / Management  for denial of promotion to the Employee concerned.  Failure by an Employer to communicate Adverse Entry, made by the Employer / Management in the ACR of an employee, to the employee concerned  is an actionable Grievance for the Employee.  
 

 Rationale:

1. In the case reported in 2018(13) SCALE 796, the issue involved was whether the un-communicated ACRs, which are adverse to the Appellant, should have been relied upon for the purpose of consideration of the  Appellant for promotion. The Hon’ble Court observed and held:


"In view of the decision of this Court in Sukhdev Singh Vs. Union of India & Ors. reported in (2013) 9 SCC 566, there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process."

2.  In Civil Appeal Nos 5340-5341 of 2019 decided on the 10th. July 2019, the submissions before the Hon'ble Supreme Court was that the Hon’ble Allahabad High , which was moved by the appellant in proceedings under Article 226, was in error in coming to the conclusion that the failure to communicate an adverse entry or an entry below the benchmark does not result in an actionable grievance. The Hon’ble Supreme Court referred to the earlier decisions of Supreme Court in Dev Dutt v Union of India reported in (2008) 8 SCC 725 and the subsequent decision of the three-judge Bench in Sukhdev Singh v Union of India reported in (2013) 9 SCC 566, and observed and held :

 

"Admittedly, for one of the years under consideration (2011-12) for the promotional exercise for 2014-15, the appellant was graded a “B”, while for the subsequent two years, he was graded an “A”. Consequently, the fact that the appellant was given a lower grading for 2011-12 would materially affect whether or not he should be promoted from Scale III to Scale IV for the year in question. The non-communication of the entries is, therefore, a matter in respect of which a legitimate grievance can be made by the appellant, particularly having regard to the position in law laid down in Dev Dutt  (supra) and Sukhdev Singh (supra)."

                                                                                                                                                      [Emphasis supplied]

 

Summary of Question-  Affect of Acquittal by criminal Court on Departmental Enquiry.

Question- Whether Acquittal by Criminal Court absolves delinquent employee.

Answer –  Not  in all cases. Acquittal by Criminal Court does not, ipso facto, absolve a delinquent employee in Disciplinary Proceedings ; there is different degree of proof in criminal Trial and Departmental Enquiry; criminal trial and Departmental Enquiry operate in different fields. 
 

 Rationale:

The Hon'ble Supreme in CIVIL  APPEAL  No.  7130  OF  2009 (SHASHI  BHUSAN  PRASAD vs. INSPECTOR  GENERAL CENTRAL  INDUSTRIAL  SECURITY FORCE ), decided on the 1st. August 2019, observed and held :

"We  are  in  full  agreement  with  the  exposition  of  law  laid down  by  this  Court  and  it  is  fairly  well  settled  that  two proceedings  criminal  and  departmental  are  entirely  different. They  operate  in  different  fields  and  have  different  objectives. Whereas  the  object  of  criminal  trial  is  to  inflict  appropriate punishment  on  an  offender,  the  purpose  of  enquiry  proceedings is   to  deal  with  the  delinquent  departmentally  and  to  impose penalty  in  accordance  with  the  service  Rules.    The  degree  of  proof which  is  necessary  to  order  a  conviction  is  different  from  the degree   of   proof   necessary   to   record   the   commission   of delinquency.    Even  the  rule  relating  to  appreciation  of  evidence  in the  two  proceedings  is  also  not  similar.    In  criminal  law,  burden of  proof  is  on  the  prosecution  and  unless  the  prosecution  is  able to  prove  the  guilt  of  the  accused  beyond  reasonable  doubt,  he cannot   be   convicted   by   a   Court   of   law   whereas   in   the departmental  enquiry,  penalty  can  be  imposed  on  the  delinquent on   a  finding   recorded   on   the   basis   of   ‘preponderance   of probability’.    Acquittal  by  the  Court  of  competent  jurisdiction  in  a judicial  proceeding  does  not  ipso  facto  absolve  the  delinquent from   the  liability   under   the  disciplinary   jurisdiction   of   the authority.      This  what  has  been  considered  by  the  High  Court  in the  impugned  judgment  in  detail  and  needs  no  interference  by this  Court."