Service Law part 2
Summary of Question- Creamy Layer
Question- Whether Individual Income of candidate to be clubbed with the income of parents for determining creamy layer.
Answer – No.
In a case reported in 2014 (15) SCC 767, the Hon’ble Supreme Court held that there is really no room for any doubt, that the exposition with reference to category VI in the office memorandum dated 8.9.1993 related only to the income of the parents of the individual concerned, And that, the income of the individual concerned was not to be taken into consideration.
Summary of Question- Transfer of Spouse
Question- Whether it is mandatory for the Management that husband and wife should be posted at same place even if there is such provision in the Service Rules.
Answer – No.
A three Judges Bench decision of the Hon’ble supreme Court in a case reported in AIR 1992 SC 519 observed and held as under:
“There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers' grade and thereafter he seeks to be relieved of that necessary incident of All-India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.”
Summary of Question- Consultation with CVC.
Question- Whether the DA or AA should be guided by the CVC as to how to exercise their power and what punishment should be imposed.
Answer – No.
In Nagaraj a case reported in 1992 (II) LLJ 149 SC , the Hon’ble Supreme Court considered a case where the employer Bank referred the matter to the Chief Vigilance Commissioner for advice and the Commissioner made a recommendation that the employee may be compulsorily retired from service by way of punishment. The directive of the Ministry of Finance directed that the disciplinary authority and appellate authority could not impose a lesser punishment than what was suggested by CVC without its concurrence. The Bank accordingly imposed the penalty of compulsory retirement. This Court held that the advice tendered by the CVC was not binding on the punishing authority and it was not obligatory upon the punishing authority to accept the advice of the CVC. The Supreme Court held that no third party like CVC or Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. I quote below one observation made by the Supreme Court:
“The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer.”
Summary of Question- Useless Formality Vis-a-Vis Natural Justice.
Question- What is “Useless Formality” theory .
Answer – Where the facts are admitted, the principles of natural justice are not required to be complied with, particularly when the same would result in futility. It is based on “Useless Formality” theory. This theory is an exception to Natural Justice.
1. In a case before three Judges Bench of the Hon’ble Supreme Court reported in AIR 2018 SC 1411, short facts were
(i) The Respondent was appointed to the post of Veterinary Compounder in the Department of Animal Husbandry and Dairying by one H.S. Rathore, the then Agriculture Officer, Central Cattle Breeding Farms (CCBF), Suratgarh, who was purportedly authorised only to look after the current duties of the post of Director. However, by an office order dated 29th August, 2000 issued under the signature of Dr. M.N. Haque, Director, the services of Respondent came to be terminated. The said order reads as under:
“In compliance to Ministry's decision vide their letter No. 8-6/99-Admn.III dated 18th August, 2000, illegal appointment, of Shri Raghuwar Pal Singh S/o Shri Himat Singh Shekhawat to the post of Veterinary Compounder, made by the then Director Incharge Shri H.S. Rathore, agriculture Officer, without approval of the Competent Authority, vide this office order No. 14-62/99-CPS/1562 dated 24/30 November, 1999, is CANCELLED with immediate effect. Accordingly, his service stands terminated as per terms and conditions laid down in point v) & vi) of the offer of appointment letter No. 5-17/96-99/CPS/1308 dated 16/22 November, 1999.”
(ii) The Respondent assailed the said order before CAT on the ground, inter alia, if there was any irregularity in the appointment process, that could have been enquired into by the department, but without taking recourse to any inquiry, the impugned termination order had been issued. Such action was violative of Article 311(2) of the Constitution of India. The order is not a termination simpliciter but would cause prejudice to the Respondent. It is a stigmatic order indicating that the appointment of the Respondent was illegal, for which reason also, principles of natural justice ought to have been adhered to by the department.
(iii) with the contention of non-compliance of Natural justice, CAT held any appointment made de hors the statutory Rules has no validity and that those who come by the back door have to return by the same back door and cannot claim protection of principles of natural justice. For that, the CAT relied on the case of Union of India and Ors. v. M. Bhaskaran reported in 1995 Suppl. (4) SCC 100, State of U.P. and Ors. v. U.P. State Law Officers Association reported in 1994 (2) SCC 204 and Kendriya Vidyalaya Sangathan v. Ajay Kumar Das reported in 2002( 4 ) SCC 503.
1.1. Hon’ble High Court held the termination order issued in violation of the principles of natural justice. The High Court thus opined that the termination order could be passed only after giving opportunity to the Respondent and not otherwise
1.2. The Supreme Court also referred to the observation of earlier decision of the Supreme Court in the case of M.C. Mehta v. Union of India reported in 1999( 6) SCC 237 (which is given in para 1.3 below), which evolved the 'useless formality' theory, and held –“We have no hesitation in concluding that in the fact situation of the present case, giving opportunity of hearing to the Respondent before issuance of the subject office order was not an essential requirement and it would be an exercise in futility.”
1.3. More recently Lord Bingham has deprecated the 'useless formality' theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton (1990) IRLR 344 by giving six reasons. (See also his Article 'Should Public Law Remedies be Discretionary? 1991 PL, p.64.) A detailed and emphatic criticism of the 'useless formality theory' has been made much earlier in 'Natural Justice, Substance or Shadow' by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p.323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the Court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma 1996 3 SCC 364, Rajendra Singh v. State of M.P. 1996 5 SCC 460 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
2. Vide the case reported in 2015 (8) SCC 519:
“To recapitulate the events, the Appellant was accorded certain benefits under Notification dated July 08, 1999. This Notification stands nullified by Section 154 of the Act of 2003, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the Appellant was benefited under the aforesaid Notification becomes refundable. Even after the notice is issued, the Appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco (supra). Likewise, even the officer who passed the order has no choice but to follow the dicta in R.C. Tobacco (supra). It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by 'useless formality theory .”
3. Vide the case reported in AIR 2010 SC 142
“In the present case, in the letter dated 22nd of November, 1985, the respondent had admitted all the charges and had stated unequivocally that his behavior was due to mental sickness and prayed for sympathy and mercy. This along with the fact that the respondent was earlier charged on similar grounds and dismissed but, on his request, was exonerated and given a chance to amend his conduct also goes a long way to project the fact that observance of the principles of natural justice would be merely a useless formality since he had admitted the charges against him. The High Court found that a poor workman in such a situation would be left with no option but to seek sympathy by accepting the allegations raised and praying for mercy. But we are of the opinion that it is too far fetched an imagination of the High Court, adhering to the belief that these are the erstwhile time preceding industrial revolution where the employer was the God and the employee was the slave.”
4. Vide the case reported in 2009 14 SCC 690
“The Division Bench of the Court does not dispute the fact of passing of the impugned order without hearing the appellant, but condones the procedural irregularity by bringing it under the "doctrine of futile exercise". According to the Court, even if an opportunity of showing cause was afforded to the appellant, it would not have made any difference. We fail to understand the logic adopted by the Division Bench. The reason being, that, it is the case of the appellant that on a recommendation made by Circle Promotion Committee, he was regularly promoted to the post of Accounts Clerk, since he had necessary qualification and experience and it is his further case that though he was appointed as a daily wager, right from his induction, he was directed to discharge the work of Accounts Clerk. It is also his case that on the recommendation made by Circle Promotion Committee, the incharge Chief Electrical Engineer has passed an order approving the recommendation and granting promotion to the appellant to the post of Accounts Clerk. However, it is the case of the respondents that the Circle Promotion Committee had only recommended the change of nomenclature from that of daily wager to that of Accounts Clerk and that it is not a case of regular promotion. It is their further case, even assuming it is a case of promotion, the same has been done without following the prescribed procedure and also by ignoring the claim of several other employees and therefore, respondents were justified in cancelling the order passed by incharge Chief Electrical Engineer. In our view, these are all disputed facts and the respondents without affording an opportunity of hearing, could not have taken any administrative decision unilaterally. Therefore, the Division Bench of the High Court is not justified in concluding that under the "useless formality theory" the rules of natural justice need not have been followed by the respondents.”
5. Vide the case reported in 2009 14 SCC 253
“The question which, however, falls for consideration is as to whether in a situation of this nature, principles of natural justice were required to be complied with. It is now a well settled principle of law that it cannot be put in a straight jacket formula. The Court, despite opining that principle of natural justice was required to be followed, may, however, decline grant of a relief, inter alia, on the premise that the same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice”
6. Vide the case reported in 2007 4 SCC 54
“A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.”
7. Vide the case reported in AIR 2000 SC 2783
“The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above,- there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J, and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise, the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case, to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.”
Summary of Question- Subsequent Acquittal in criminal case
Question- Whether subsequent Acquittal in criminal case can be a ground for appointment.
Answer – No.
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- Reinstatement on Acquittal
Question- Can an employee be reinstated even if he is Hounorably acquitted by criminal Court.
Answer – No. In the absence of any provision in the service rule for reinstatement, even if an employee is honourably acquitted by a criminal Court, he cannot be reinstated.
The Hon’ble Supreme Court has observed and held in a reported in AIR 2013 SC 14 as under
“………in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. ………………….
We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the re-instatement is automatic. There may be cases where the service rules provide in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right………….”
Summary of Question- Allegation of Malafide against Government / Public Sector Employer
Question- Whether just allegation of malafide against Govt. / Public sector employer by employee would be sufficient in the court of law.
Answer – No.
Following observation of the Hon’ble Supreme Court in a case reported in 2007 (8) SCC 418 :
“ Allegations of mala fide are serious in nature and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make 'fishing' or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts. Moreover, the burden of proving mala fide is on the person levelling such allegations and the burden is 'very heavy' ……………….. The charge of mala fide is more easily made than made out.”
Summary of Question- Prosecution under Special Statute and Indian Penal Code
Question- Can a parson (may be an employee) be prosecuted under Special Statute, applicable to the person, as well as under Indian Penal Code.
Answer – Yes.
1. In a case reported in 2011 (1) SCC 534, question of law was whether provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act operate bar against prosecution under other law including IPC.
Apex Court observed and held-
".......respondent could have been simultaneously prosecuted for contravention of sections 24, 24 A and 26 Act and for the offences defined under the IPC but in view of the bar contained in Article 20 (2) of the Constitution read with section 26 of General Clauses Act and section 300 of code of Criminal Procedure he could not be punished twice for the same offence...."
2. There is a decision of a Division Bench of Hon’ble Madras High Court reported in 2012 Cri. L J 1705 in which the issue was whether provisions of Mines Act, would either explicitly or impliedly exclude provisions of Indian Penal Code when act of an Accused was an offence both under IPC and under Provisions of Mines Act.
2.1. The Bench relied on the said decision of Apex Court and held that there can well be a prosecution for an offence under Section 379 of IPC as well as under Section 21 of the Mines and Minerals Act simultaneously and the principle of double jeopardy shall not be a bar for such simultaneous prosecution.
Summary of Question- Regularisation of Contractual Employee
Question- Whether contractual employee is entitled for regularization or claim to continue on contract after expiry of the contract.
Answer – No. But the contractual employment must be in accordance with law .
Following observation of the Hon’ble Supreme Court made in some cases:
i. In the case reported in 2006 (6) SCC 516, the Apex court observed as under:
“ The respondent, within a span of about 18 months, was appointed thrice and disengaged thrice. As noticed hereinbefore, she was appointed on a contractual basis. The appointments were temporary ones. She was aware that her services could be terminated without notice. She accepted the terms and conditions of the said offers of appointments without any demur………………………………………………………………………………………….. Although, there was no fixed period of contract of employment between the employer and the workman concerned and thus, no question of its renewal on its expiry, but there existed a stipulation in the contract that the Executive Officer has the power to dismiss her without issuing any notice...”
ii. In the case reported in 2006 (12) SCC 482 , the Apex court observed as under:
“It is now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on the said post for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to turn their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary employee or on contract basis. The submission made by the learned Counsel for the respondents to the said effect has no merit and is, therefore, liable to be rejected. It is also well-settled law by several other decisions of this Court that appointment on ad hoc basis/temporary basis comes to an end by efflux of time and persons holding such post have no right to continue on the post and ask for regularisation etc.”
iii. Fact in the case reported in 2007 (13) SCC 290, in short , was that a Division Bench of the High Court of Punjab & Haryana at Chandigarh allowed the writ petitions filed by the respondents who were appointed as part time lecturers with the following directions:
“In view of the above, the petitions are allowed and the respondents are directed to consider the petitioners for regularisation de- hors of the contractual clause indicated in the advertisement and also the same having been mentioned in the terms of appointment. If regularised, they shall also be considered for being placed in the regular pay scale with the initial pay payable accordingly. This entire exercise be carried out by the respondents within three months from the date of receipt of certified copy of this judgment. It may be clarified that in view of the fact that the State has filed special leave petition against the judgment rendered in Ms. Maninder Kaur's case (supra), the result thereof shall also affect the consideration and the relief grantable and granted to the petitioners. This fact, may be specifically mentioned in the orders which may be passed by the concerned authorities. The cases where the regularisation has already been granted pursuant to the aforestated policies of the Government or as the case may be, they shall be considered for being placed in the respective pay scales applicable accordingly and shall be placed at the initial stage in accordance with the provisions of law.”
The Apex Court set aside the order of the High Court of regularisation dehors the terms and conditions of the appointment letter and remitted the matter for fresh adjudication.
iv. A Five Judges Bench of the Hon’ble Supreme Court in the case reported in 2006 (4) SCC 1 observed and held as under:
“When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post”
Summary of Question- Irregular Appointment
Question- Whether Irregular Appointment MUST be stopped in Public Employment.
Answer – Yes.
In the case reported in (2018) 8 SCC 238 , the Hon’ble Supreme Court referred to the decisions of State of Karnataka v. Umadevi (1) and State of Karnataka vs. M.L. Kesari (2) and observed:
“6. The decision in Umadevi 1 was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.”
“ 8. The purpose and intent of the decision in Umadevi 1 was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on continued with the irregular appointments for almost a decade after the decision in Umadevi 1 is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi 1 and Kesari 2 sought to avoid.”
“10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.”
1. (2006) 4 SCC 1
2. (2010) 9 SCC 247.
Summary of Question- Duration of Suspension
Question- Whether suspension must necessarily be for short duration.
Answer – Yes.
The Hon’ble Supreme Court in a case reported in 2018 (10) SCALE 157 observed and held as under:
"This Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first Respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial…..”
Summary of Question- Un-communicated and Adverse ACRs
Question- Whether Un-communicated and Adverse ACRs can be relied upon to deny promotion.
Answer – No.
1. Before the Hon’ble Supreme Court in a case reported in 2018 (13) SCALE 96, the sole issue involved was whether the uncommunicated Annual Confidential Reports (ACRs), which were adverse to the Appellant, should have been relied upon for the purpose of consideration of the Appellant for promotion
2, The Apex Court referring to its earlier decision observed and held as under:
“………… This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process."
Summary of Question- Writ petition against punishment in Departmental Proceedings.
Question- Whether ,under Article 226 of the Constitution of India, High Court can interfere with the order of punishment imposed in Departmental Proceedings.
Answer – Yes, in certain circumstances viz. where finding is unsupported by evidence on record, finding which no reasonable person could arrived at, violation of principles of natural justice, non-application mind by Enquiry Officer/ Disciplinary Authority / Appellate Authority.
The Hon’ble Supreme Court in a case reported in 2017 (2) SCC 308 observed and held as under:
“We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The Respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the Appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.”
Summary of Question- Withholding of Pension on Executive Instructive order.
Question- Whether Pension can be withheld ,in absence of any statutory provision, on executive instruction.
Answer – No.
1.In a case reported in (2013) 12 SCC 210, crisp and short question was as to 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.
2. The Hon’ble supreme Court referred to the following observation of the Constitution Bench reported in (1971) 2 SCC 33:
“.the right of the Petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the Petitioner right to receive pension affects the fundamental right of the Petitioner under Articles 19(1)(f) and 31(1) of the Constitution,……..”
3. The Apex Court in the said case reported in (2013) 12 SCC 210 observed and held :
“In State of West Bengal v. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31(1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum--Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.”
“A person cannot be deprived of his 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.”
Summary of Question- Recovery of Excess payment from pensionary benefits.
Question- Whether Excess payment can be recovered from Pensionry benefits if there is no fault / fraud on the part of the employee.
Answer – No ; even if there is any right to the employer to make recovery under any declaration taken from the employee, such declaration has to be strictly construed.
In a case reported in 2017 Lab I C 806, there was a declaration “I do hereby agree that the payments of the monthly bills and arrear pay bills drawn in the revised scale of pay are 'Provisional' and are subject to subsequent adjustment and that the over-drawals, if any, in this regard be recovered forthwith from my salary bill”, Hon’ble Calcutta High Court observed and held as under:
“The form of declaration clearly means that even at the highest, recovery of excess payment could be made by the State from the salary bill of the petitioner during the tenure of his service. In my opinion, such a declaration would not entitle the State to recover any over-drawals from the pensionary benefits of the petitioner. Pensionary benefits are paid to a superannuated person by way of social welfare measure to enable him to live a life of dignity which is now recognized as a fundamental right of a citizen of India. Retiral benefits are not to be lightly interfered with. Any right of the employer to recover from the pensionary benefits of an employee any excess payment received by the employee due to no fault, fraud or misrepresentation on his part is to be strictly construed. Of course, it will be a different thing altogether if the employee has fraudulently induced the employer to make the excess payment. In such a case the employer's right to recover the excess payment from the pensionary benefits of the employee cannot be doubted since fraud unravels everything. But it is not the case of the State that the petitioner in the present case has received excess payment by practising fraud or making misrepresentation nor that the petitioner was conscious that he was receiving more than he was entitled to. Moreover, it is common knowledge that such declarations are signed by an employee under compelling circumstances with no real choice in the matter.”
Summary of Question- Scheme for Voluntary retirement (VRS) has to be strictly adhered to.
Question- Whether an employee who has opted for retirement under a voluntary retirement scheme (VRS) is entitled to the package as per the scheme only.
Answer – Yes.
In CIVIL APPEAL NO. 10775 of 2018, decided on 26th. October 2018, the Hon'ble Supreme Court observed and held as under:
"We have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS2004 Scheme have to be strictly adhered to, and the very objective of having such Schemes would be defeated, if parts of other Schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the Schemes of voluntary retirement, and that alone would be admissible.”
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 caddidate).
Answer – Yes.
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."
2. 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."
Summary of Question- Qualification after Cut-Off date
Question- Whether a candidate, who acquired prescribed qualification after Cut-Off date, can be eligible.
Answer – No.
In CIVIL APPEAL NOS. 235-236 of 2019, decided on 22nd. January 2018, the Hon’ble Supreme Court observed:
".... eligibility of the candidates must be decided with reference to the qualification possessed as on the cut-off date and the qualification acquired later in point of time cannot make a candidate eligible.”
Summary of Question- Writ petition against charge sheet or show cause notice
Question- Whether writ petition against charge sheet or show cause notice can be maintainable in all cases.
Answer – No. Writ petition against charge sheet or show cause notice is ordinarily not maintainable unless the same has been issued by a person having no jurisdiction to do so or for some other reason if it is wholly illegal
1. The Hon'ble Supreme Court in Appeal (civil) 5145 of 2006, decided on 22 November, 2006, observed and held :
"It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
2. The Hon’ble Supreme Court in CIVIL APPEAL NO. 2333 OF 2007, observed and held:
" Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906)."
" In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority."
Summary of Question- Writ petition and delay in Departmental Proceedings
Question- Whether writ petition to set aside Departmental Enquiry , on the ground of delay, is maintainable in all cases.
Answer – No. In writ Jurisdiction, Departmental Enquiry cannot ordinarily be set aside or charge sheet quashed on the ground of delay in initiation of Departmental Enquiry.
1. The Hon’ble Supreme Court in CIVIL APPEAL NO. 8263 OF 2012, decided on 23 November, 2012, observed and held:
"..... The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein......"
2. The Hon’ble Supreme Court in the case reported in 1995 SCC (2) 570, observed and held :
" There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. ..."
" The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R.Antulay v. R.S.Nayak & Anr. (1992 (1) S.C.C.225). Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this court mentioned the propositions emerging from the several decisions considered therein and observed that "ultimately the court has to balance and weigh the several relevant factors - balancing test or balancing process - and determine in each case whether the right to speedy trial has been denied in a given case". It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other cir- cumstances may be such that quashing of the proceedings may not be in the interest of Justice.. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstance of the case."