36616068-cca-cca-rules-commentary.pdf 5n5062

THE CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL & APPEAL) RULES, 1965 R.1

PART I

GENERAL

1.

Short title, extent and commencement:— (1) These Rules may be called the Central Civil Services (Classification, Control and Appeal) Rules, 1965. (2) They shall come into force on the 1 st December, 1965.

COMMENTARY SYNOPSIS 1.

These rules have been made by the President under Article 309.. ...................................... 3

2.

Rules whether could only be issued under the signature of the President ........................................................................................................................... ..3

3.

Powers to make Rules ........................................................................................................ 3

4.

Legislative competence ..................................................................................................... .3

5.

Legislative character .......................................................................................................... 4

6.

Article 309 of Constitution an enabling provision.............................................................. 4

7.

Application of Art. 309 to the civilians working in the defence service ............................ 4

8.

Not obligatory to make rules .............................................................................................. 4

9.

Rules in a State................................................................................................................... 5

10. Rules for Union Territories under Article 309 ................................................................... 5 11. Rules may lay down conditions of service and recruitment ........................................... …5 (i)

“Conditions of Service”, meaning of ............................................................ 5

(ii)

Service conditions — change in .................................................................... 6

(iii)

Conditions of service can vary from post to post and service to service ........ 6

(iv)

Rules relating to conditions of service of officers and servants of a High Court and seniority of officers of judicial service........................................... 7

(v)

Rules should be reasonable, fair and not grossly unjust ................................. 7

(vi)

Service conditions end on merger of State ..................................................... 7

2

GUIDE TO DEPARTMENTAL PROMOTIONS ENQUIRIES, PUNISHMENTS & APPEALS

12. Rules subject to judicial scrutiny ....................................................................................... 8 13. Entry into service ............................................................................................................... 8 14. Rules not to impinge upon pleasure of President or Governor ........................................... 8 15. Rules issued with approval ................................................................................................. 8 16. Rules under Police Act ....................................................................................................... 8 17. Rules cannot nullify protection given by Statute ................................................................ 9 18. Rules not to curtail rights guaranteed by Article 311 ......................................................... 9 19. Rules with retrospective operation ..................................................................................... 9 20. Rules — (i)

Interpretation of ........................................................................................... 10

(ii)

Where two constructions possible ................................................................ 10

(iii)

Harmonious Construction ............................................................................. 10

(iv)

Notes to the rules .......................................................................................... 10

(v)

Proviso to a rule............................................................................................ 11

(vi)

Clarification of the Rules .............................................................................. 11

(vii)

Mandatory and directory .............................................................................. 11

(viii)

Rule of procedure ......................................................................................... 12

21. Rules, unilateral alteration of .......................................................................................... 13 22. Rules cannot be altered or amended by istrative or executive instruction .............. 13 23. Rules cannot be modified by executive orders ................................................................. 13 24. Relaxation of Rules .......................................................................................................... 14 25. Validity of rule cannot be affected by reason of inconsistency with prior executive order — (i)

Gaps in rules, filling by istrative or executive instructions ................. 14

(ii1

Breach of executive or istrative instructions ....................................... 14

26. istrative or executive instructions (i)

Where no rules.............................................................................................. 15

(ii)

istrative/Executive instruction cannot modify rule ............................ 15

(iii)

istrative/Executive Instructions or Directives contrary to Rules made under Article 309 ................................................................................ 15

(iv)

Do confer rights and duties ........................................................................... 15

(v)

Publication of .............................................................................................. 15

(vi)

With retrospective effect .............................................................................. 16

27. istrative instructions and Rules & Regulations, distinction between .................... 16 28. Supplemental instructions not to be inconsistent with rules ............................................. 17 29. Letter/memorandum whether has status of no rule ........................................................... 17 30. Instructions by Governor, do not become service rules .................................................... 17 31. Presidential Resolution, Power of Government to override ............................................. 17

[R.1

R.1]

GENERAL

3

32. Rules in force immediately before commencement of Constitution ................................. 17 33. Rules and Regulations by Public Undertakings and statutory bodies ............................... 17 34. Repeal of Rules ................................................................................................................ 18 35. Strict compliance of rules is required ............................................................................... 18

1. These Rules have been made by the President under Article 309 —These Rules have been made by the President under Article 309 of the Constitution of India and they can, therefore, operate only within the scope of Article 309 and cannot travel beyond its ambit. Jai Nath Wanchoo v. Union of India, AIR 1970 Bom 189: 1972 Bom LR 51: ILR 1970 Bom 887. See also Gaya Pandey v. State of Bihar, 1973(1) SLR 1; Sagli Ram Randhir Singh v. Union of India, 1975(2) SLR 379: 1976 SLJ 77; B.S. Yadav v. State of Haryana, 1981(1) SCR 1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC 104: 1981(1) LLN 235: 1981(1) LLJ 280: 1980(3) SLR 591: 1981 SCC (Lab) 343: 1981(1) SCWR 310: 1981(2) SCJ 137. and S. Surjit Singh v. Union of India, 1975(1) SLR 424: 1975 SLJ 110; State of U.P. v. Chandra Mohan Nigam, 1977 SCJ 633; 1978(1) SLR 12 (SC); Union of India v. Ranjit Singh Grewal, 1980(3) SLR 256. See also State of U.P. v. Shri Krishna Pandey, AIR 1996 SC 1656: 1996(9) SCC 395: 1996(2) SLR 518: 1996 SCC (L&S) 1250. 2. Rules Whether could only be issued under the Signature of the President— The orders made by the President instead of being signed by the President personally are authenticated by officers under Article 77(2) to show that they are executed by the President himself. This is why the orders are expressed to be made by the President. An order or instrument which is duly authenticated cannot be called in question on the ground that it is not an order or instrument made or executed by the President. D.S. Sharma v. Union of India, AIR 1970 Delhi 250: 1971(1) SLR 44. 3. Powers to make Rule — Article 309 of the Constitution of India provides:— “Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the union or of any State. Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or order an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.” 4. Legislative Competence — It is within the competence of the Legislature to enact law governing the recruitment and the conditions of the service of its employees. However, till the enactment of such a law and so far as no law may have been ed

4


[R.1

the recruitment and conditions of service can be validly regulated by the rules framed by the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and by the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State concerned. In case of any conflict between the legislative enactment and the rules framed under the proviso to Article 309, the legislative enactment will prevail. As long as there is neither any legislative enactment nor any statutory rules framed by the President or the Governor, the conditions of service and other matters relating to their employees can be regulated by the issuance of istrative instructions in exercise of the executive powers of the Government concerned. Harkishan Singh v. Punjab State, 1969 Cur LJ 833; B.S. Vadera v. Union of India, AIR 1969 SC 118: 1969 SLR 6: 1969(1) SCJ 73: 1969 Lab IC 100: 1970(1) LLJ 499: 1968(17) FJR 411: 1968(2) SCA 597: 1969(1) SCWR 182: 1968 SCD 1120; Gaya Prasad Pandey v. State of Bihar, 1973(1) SLR 1; N. Lakshmana Rao v. State of Karnataka, 1975 SLJ 560: AIR 1975 SC 1646: 1975(2) SLR 272: 1976(2) SCC 502: 1975 Lab IC 1121: 1975 SLJ 560: 1975(31) FLR 44: 1975(2) LLJ 87: 1975(2) SCWR 236; Parmeshwar Dayal v. State of M.P., 1977 SLJ 284: 1978(1) SLR 142. See also State of Tamil Nadu v. K. Subanayagam, AIR 1998 SC 344: 1998(1) SCC 318: 1997(9) JT SC 316: 1998(1) SLT 137: 1998(1) SLR 28 (SC). 5. Legislative character — Rules made under Article 309, proviso, of the Constitution are legislative in character. Raj Kumar v. Union of India, AIR 1975 SC 1116: 1975(4) SCC 13: 1975(1) SLR 774: 1975 Lab IC 669: 1975 SLJ 615: 1975(30) FLR 370: 1975 SCC (Lab) 198; Dr. Jagmohan Singh v. State of Punjab, 1980(3) SLR 400. A Memorandum under F.R.56 has also statutory force. Premdhar Baruha v. State of Assam, AIR 1970 SC 1314: 1971(1) SCR 503: 1970(2) SCC 211: 1970 SLR 529: 1970 Lab IC 1067, (case relating to age of superannuation). 6. Article 309 of Constitution an Enabling Provision — The provisions of Article 309 are merely enabling provisions and they do not impose any duty to legislate or make rules nor, in the absence of such legislation or rules, do they fetter the power of any State Government to exercise its executive power in the matter of its services. A. Laxmandas v. State of M.P., AIR 1970 MP 189. 7. Application of Art. 309 to the civilians working in the defence service — Held that employees serving in Defence can not claim any protection under Art. 311 of the Constitution and CCS(CCA) Rules, 1965, which have been framed under Art. 309 and subject to Art. 311. Union of India v. Indrajit Datta, 1995 Supp (3) SCC 229: 1995(5) SLR 228. 8. Not Obligatory to make Rules — (i) It is not obligatory upon Government to make rules regarding matters pertaining to service under the Government. Mallinath Jain v. Municipal Corpn., Delhi, 1973 SLJ 239: 1973(1) SLR 413; Hardwari Lal v. Divisional Engineer, Telegraphs, 1972 SLR 279. (ii) It is not obligatory under the proviso to Article 309 to make rules of recruitment etc. before a service can be constituted, or a post created or filled. Swaran Lata v. Union of India, 1979 SLJ 170: 1979(1) SLR 710; Smt. Maria T.S. da P. Morais

R.1]

GENERAL

5

Almeida v. Union of India, 1982(1) SLJ 136. Same applies to promotion. Sant Ram v. State, AIR 1967 SC 1916: 1967(3) SCR 595. 9. Rules in a State — Under Article 309 of the Constitution the Governor of a State or such person as he may direct can make rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the State until provision in that behalf is made by or under an Act of an appropriate Legislature. B.S. Vadera v. Union of India, AIR 1969 SC 118: 1969 SLR 6: 1969(1) SCJ 73: 1969 Lab IC 100: 1970(1) LLJ 499: 1968(17) FJR 411: 1968(2) SCA 597: 1969(1) SCWR 182: 1968 SCD 1120; (1969)3SCR575 Gaya Prasad Pandey v. State of Bihar, 1973(1) SLR 1. 10. Rules for Union Territories under Article 309 — The President acting under the proviso to Article 309, can make rules regulating the recruitment and the conditions of service, of the persons appointed to public services and posts in the Union Territories. Sagli Ram Randhir Singh v. Union of India, 1975(2) SLR 379: 1976 SLJ 77. 11. Rules may lay down conditions of service and recruitment — Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. R.N. Nanjundappa v. T. Thimmiah, 1972(2) SCR 799: 1972(1) SCC 409: AIR 1972 SC 1767: 1972 Lab IC 618: 1972(1) LLJ 565: 1973(2) SCJ 265: 1972 SLR 94; V.R. Shambulinga v. State of Karnataka, 1980(2) SLR 413. (i) “Conditions of service” meaning of — All those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc. State of M.P. v. Shardul Singh, 1970(3) SCR 302: 1970(1) SCWR 65: 1970 SLR 101: 1970(2) SCJ 442: 1970(1) SCC 108. See also State of Maharashtra v. Chandrakant Anant Kulkarni, AIR 1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130:1981(2) SLJ 280: 1982(1) SLR 697 (SC).1981 Lab IC 1568: 1981(2) LLJ 433: 1981 SCC (Lab) 562. The expression “condition of service” has a very wide import and covers many topics, for example, period of probation, confirmation, leave, travelling allowance, pay, promotion, gratuity etc. Parmeshwar Dayal Ram Pandey v. State of M.P., 1978(1) SLR 142; Lily Kurian v. Sr. Lawina, 1978 Lab IC 1644: AIR 1979 SC 52: 1979(1) SLR 26. Seniority is a condition of service. B.S. Yadav v. State of Haryana, 1981(1) SCR 1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC 104: 1981(1) LLJ 280: 1980(3) SLR 591: 1981(1) SCWR 310: 1981(2) SCJ 137. Condition of service would include the age of superannuation. State of Bihar v. Yogendra Singh, AIR 1982 SC 882: 1982(1) SCC 664: 1982(1) SCJ 303: 1982(1) SLR 683 (SC): 1982(44) FLR 281: 1982(1) SLJ 580:1982(1) SCJ 303: 1982 BBCJ (SC) 114: 1982 BLJ 374: 1982 BLJR 447: 1982 Pat LJR (SC) 75. Even as a right to receive pension, although accruing on retirement, is a condition of service, so also the right to the payment of the cash equivalent of leave salary for the period of unutilised leave accruing on the date of retirement must be

6


[R.1

considered as a conditions of service. Union of India v. Gurnam Singh, AIR 1982 SC 1265: 1982(2) SCC 314: 1982(2) SLR 131 (SC): 1982(44) FLR 391: 1982(1) SLJ 630. (ii) Service Conditions : Change in — The conditions of service can be changed in exercise of the powers contained in Article 309 of the Constitution. C. Sankara Narayanan v. State of Kerala, 1971(2) SCWR 5: AIR 1971 SC 1997: 1971(2) SCC 361: 1971 Lab IC 1178: 1971 Ker LT 422: 1971 Lab IC 1178: 1971 SCD 861; M.M. Bindra v. Union of India, 1973(1) SLR 928. A rule which merely affected chances of promotion cannot be regarded as varying a condition of service. Mohammad Shujat Ali v. Union of India, AIR 1974 SC 1631: 1974(2) SLR 508: 1975(3) SCC 76: 1974 Lab IC 1103: 1976(2) LLJ 115: State of Maharashtra v. Chandrakant Anant Kulkarni, AIR 1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130: 1981(3) SLR 326: 1981(2) SLJ 280: 1982 (1) SLR 697 (SC): 1981 Lab IC 1568: 1981(2) LLJ 433, Union of India v. Colonel Shyam Kumar, 1982(2) SLR 487. Power to regulate conditions of service is wide enough to include to constitute new cadre by merging certain existing cadre. S.P. Shivprasad Pipal v. Union of India, 1998(4) SCC 598: AIR 1998 SC 1882: 1998(3) JT 216: 1998(2) SLR 781: 1998(79) FLR 384: 1998(3) SLJ 108: 1998(2) LLJ 483: 1998 Lab IC 1873: 1998(3) LLN 4. The service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the rules and except to the extent of protecting promotions that have already been earned under the previous rules, the revised rules will operate to govern the seniority and future promotion prospects of all the persons in the concerned service. Wg. Commander J. Kumar v. Union of India 1982(1) SLJ 452: 1982(1) SLR 715 (SC): 1982 Lab IC 1586: AIR 1982 SC 1064.: 1982(2) SCC 116: 1982 Lab IC 1586: 1982(1) SLJ 452. If the service conditions of particular set of employees are governed by a statute, then they could only be altered or amended by another statute and in case they are governed by statutory rules, then the service conditions of such employees can be altered only by a statute or statutory rules. But istrative instructions cannot alter or modify the conditions of service of those employees, who are governed by a statute or statutory rules. Dule Singh v. Municipal Council, AIR 1977 SC 101: 1978 SLJ 116: 1977(2) SCR 677: 1977(1) SCC 42: 1976 SLJ 721: 1976 Lab IC 1786: 1977(1) LLJ 64. (iii) Conditions of Service can vary from Post to Post and Service to Service — It is settled that conditions of service need be uniform in all services. They can vary from post to post and from service to service. A.I.S.M”s Association v. G.M. Central Railway, AIR 1960 SC 384; Kishori v. Union of India, AIR 1962 SC 1139; U.S. Menon v. State of Rajasthan, AIR 1968 SC 81; State of U.P. v. S.M. Banerji, 1974(2) SLR 499: 1974 ALJ 237. See also R.B. Jeevan Lall v. Municipal Board, 1997(1) SLR 292 Cal. Where posts fell vacant prior to amendment of Rules the same have to be filled up in accordance with the un-amended Rules. Guneeta Chadha v. Union of India, 2001(1) SLR 9 P&H (DB). But The vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules.

R.1]

GENERAL

7

State of Rajasthan v. R. Dayal, 1997(10) SCC 419: 1997(3) JT 198: 1997(2) SLR 68: 1997(1) UJ 479: 1998(1) SLJ 119. In one case amendment in rules was made during the process of appointment but the letter of appointment also making appointment on the scale of pay as per the amended rules. It was held that the incumbent cannot claim to be governed by the earlier rules which were in force at the time of his appearance in competitive examination. H.S. Grewal v. Union of India, 1997(11) SCC 758: 1997(7) JT 594: 1997(5) SLR 278: 1998(1) SLJ 259. The Government service originates from a contract but on appointment the Government servant acquired a status subject to rights and obligations governed by statute or statutory rules. Therefore the amendment in the rules affect not only the persons who service after amendment of Rules but all the persons in service at the time of amendment. Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR 1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91: 1997 Lab IC 3361. (iv) Rules Relating to Conditions of Service of Officers and Servants of a High Court and Seniority of Officers of Judicial Service — The approval of the Governor is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. M. Gurumoorthy v. ant General, Assam, 1971(2) SLR 434: AIR 1971 SC 1850: 1971 (2) SC 137: 1971(2) LLJ 109: 1971 Assam LR 42 (SC); also see T. Gopala Krishna Murthy v. State of A.P., 1973 SLJ 635. Power to frame rules regarding seniority of officers in the judicial service of the State is vested in Governor and not in the High Court. B.S. Yadav v. State of Haryana, 1981(1) SCR 1024: AIR 1981 SC 561: 1980 Supp SCC 524: 1981 Lab IC 104: 1981(1) LLJ 280: 1980(3) SLR 591:1981(1) SCWR 310: 1981(2) SCJ 137. (v) Rules should be Reasonable, Fair and not Grossly Unjust — There is no denying the fact that the rules regulating the conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution but even so, such rules have to be reasonable, fair and not grossly unjust, if they are to survive the test of Articles 14 and 16 of the Constitution. State of U.P. v. Ram Gopal Shukla, AIR 1981 SC 1041: 1981(3) SCC 1: 1981(2) SLR 3: 1981(1) SLJ 663 (SC): 1981(2) LLN 16:1981(1) LLJ 494: 1981 All LJ 450. (vi) Service Conditions end on merger of State — When one State is absorbed in another whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate, thereafter those, who elect to serve in the new State and are taken on by it, serve on such and conditions as the new State may choose and that this is nothing more than an application of the principle that underlines the law of master and servant, when there is a change of masters. Rajvi Amar Singh v. State of Rajasthan, AIR 1958 SC 228: 1958 SCR 1013: 1958 SCJ 420. See also B.S. Vadera v. Union of India, AIR 1969 SC 118: 1969(1) SCJ 73: 1969 SLR 6.

8


[R.1

12. Rules Subject to Judicial Scrutiny — (a) Rules under Article 309 proviso are subject to Judicial scrutiny and may be struck down if inconsistent with Articles 310 and 311. State of U.P. v. Babu Ram Upadhaya, AIR 1961 SC 751; Collector of Customs v. Md. Habibul Haque, 1973(1) SLR 321; Vishwanath Verma v. State of M.P., 1977(1) SLR 1053. Accordingly a rule regulating the scope and content of the doctrine of reasonable opportunity (Article 311) can be judicially scrutinised. State of U.P. v. Babu Ram Upadhaya, AIR 1961 SC 751. Rules can also be scrutinised with reference to fundamental rights, such as right to equality under Article 14. Dasarath Rama Rao v. State of A.P., AIR 1963 SC 564; State of U.P. v. Ramgopal Shukla, AIR 1981 SC 1041: 1981(3) SCC 1: 1981(2) SLR 3: 1981(1) SLJ 663 (SC): 1981(2) LLN 16: 1981(1) LLJ 494: 1981 All LJ 450: 1981 SCC(Lab) 464: 1981(2) SCWR 94. (b) Right to equality in employment. Amarjit Singh Ahluwalia v. State of Punjab, AIR 1975 SC 984: 1975(1) SLR 171: 1975 SLJ 220: 1975 Lab IC 613. 13. Entry into Service — A rule governing entry into service (to bar entry by promotion) cannot form part of “conditions of service”. Anoop Singh Gill v. State of Punjab, 1983(1) SLJ 532: 1983(1) SLR 602(P&H). 14. Rules not to Impinge upon Pleasure of President or Governor — Any provision in the Rules which impinges upon the pleasure of the President or the Governor under Article 310 except to the extent the same is curtailed by Article 311 would not be operative. Jai Nath Wanchoo v. Union of India, AIR 1970 Bom 180; S. Surjit Singh v. Union of India, 1975(1) SLR 424: 1975 SLJ 110; State of U.P. v. Chandra Mohan Nigam, 1977 SLJ 633: 1978(1) SLR 12 (SC): 1978(1) SCR521; Union of India v. Ranjit Singh Grewal, 1980(3) SLR 256. See Kunjappan v. Cochin Port Trust, 1997(1) SLR 242 Ker (DB). Under the proviso to Article 309 a law can be made or a Rule can be framed, as the case may be, prescribing the procedure by which and the authority by whom, the said pleasure can be exercised; and obviously a law or Rule so made cannot be treated as impinging upon, or curtailing the pleasure of the President or the Governor under Article 310. V.Y. Thomas v. Commandant, A.D.C. Centre, 1982 Lab IC 632: 1982 (2) SLR 39 (AP). 15. Rules Issued with Approval — Rules were issued with the approval of Governor. It cannot be said that Governor had delegated his power. Bhuban Chandra Dutta v. ant General, AIR 1970 Assam 26. 16. Rules under Police Act — Under Section 12 of Police Act, 1861 power to make rules conferred on the Inspector-General of Police is subject to approval of State Government, Chief Commissioner, Manipur who was also the Inspector General of Police, Manipur framed rules, but approval of the State Government was not obtained. It was held that from the mere fact that the I.G. Police was simultaneously holding the office of the Chief Commissioner, approval could not be presumed, the rules were void. Superintendent of Police, Manipur v. R.K.T. Singh, 1983(3) SLR 550(SC).

R.1]

GENERAL

9

17. Rules cannot nullify Protection Given by Statute — A protection given to an employee by the statute cannot be nullified by Rules made under the statute. Management of D.T.U. v. B.B.L. Hajelay, AIR 1972 SC 2452: 1972 SLR 787: 1973 SLJ 19. 18. Rules not to Curtail Rights Guaranteed by Article 311 — In Moti Ram Deka v. General Manager, N.E.F. Railway, AIR 1964 SC 600: 1964(5) SCR 638, which is the leading case on the meaning of “dismissal” and “removal”, it was held that rules cannot tres upon or curtail the rights guaranteed by Article 311 of the Constitution. Thus an authority subordinate to the appointing authority cannot be authorised to dismiss a civil servant. Balak Das v. Astt. Security Officer, AIR 1960 MP 183. 19. Rules with Retrospective Operation — (i) It is a settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only. An exception, however, is the proviso to Article 309. Rules framed under the proviso to Article 309 of Constitution could have retrospective operation. B.S. Vadera v. Union of India, 1969(1) SCJ 73: AIR 1969 SC 118: 1969(3) SCR 575: 1969 SLR 6; Zabar Singh v. State of Haryana, AIR 1972 SC 1972: 1973(2) SCJ 40: 1972 SLR 486; Raj Kumar v. Union of India, AIR 1975 SC 1116: 1975(4) SCC 13: 1975(1) SLR 774: 1975 Lab IC 669: 1975 SLJ 615: 1975(30) FLR 370: 1975 SCC (Lab) 198; Dei Chand Phaugat v. State of Haryana, 1980(2) SLR 391 (FB); ant General v. S. Doraiswamy, 1980(3) SLR 538: AIR 1981 SC 783. Therefore rules framed under Article 309 can be given retrospective effect. G. Nagendra v. State of Karnataka, 1998(9) SCC 439: 1998(8) JT 134(2): 1999(81) FLR 24. By amending the provision of law retrospective operation could be given to the Rules. However, retrospective operation of service rules could not be given by mere Executive instructions. Where the Rules framed by the Society are not statutory rules and they can be amended by a resolution of the competent body and any legislation or framing of rules under Article 309 of the Constitution is not required. I.C.A.R. v. Satish Kumar, 1998(4) SCC 219: AIR 1998 SC 1782: 1998(3) JT 9: 1998(2) SLR 808: 1998(3) SLJ 155: 1998 Lab IC 1596. (ii) Rules under Article 309 of Constitution which have to come into force retrospectively are in the nature of things likely to take away vested rights. Dr. Jagmohan Singh v. State of Punjab, 1980(3) SLR 400 Punjab. (iii) No subordinate or delegated authority can frame rules or regulations having retrospective effect unless there is power in any statute or statutory rules entitling the executive government or any of its agencies to orders with retrospective effect. K.D. Vasudeva v. Union of India, 1971(2) SLR 487; Abdul Gani Bhat v. State, 1976 SLJ 71: 1976 Lab IC 68; Gaya Prasad Pandey v. State of Bihar, 1973(1) SLR 1, it was held that such person as Governor may direct can also make rules retrospectively. Enforcement with retrospective effect of non-statutory rules for recruitment resulting in obviating the chances of promotion was held to contravene Articles 14 and 16(1) of the Constitution. Kamal Mukherji v. Union of India, AIR 1970 Cal 250.

10


[R.1

(iv) Even though State has power to frame rules under Article 309 with retrospective effect, such rules have to be reasonable and fair and not unjust or arbitrary if they are to survive under the test of Articles 14 and 16 of the Constitution. M.D. Deshmukh v. Union of India, 1982(2) SLJ 623. 20. Rules: (i) Interpretation of — The Rules of Statutory Interpretation or the Rules of a subordinate legislation, including Rules made under Article 309 of the Constitution, dos not empower any judicial or quasi-judicial body to apply the law to a situation or object which was not contemplated by the legislature while making a law, or by the Government while making the rule. B.N. Sinha v. Union of India, AIR 1998 SC 2600: 1998(3) SCC 157: 1998(4) JT 281: 1998(79) FLR 747: 1998 Lab IC 3100. It is however a settled rule of law that the question of intention of the Legislature or the rule making authorities is wholly immaterial in construing a statutory provision. Where the language of the rule is plain and there is no ambiguity, in such a situation there can never be any question of reading into the rule something which does not exist there. Brij Mohan Singh v. State of Punjab, 1968 Cur LJ 801. No words should be considered redundant or surplus in interpreting the provisions of a statute or a rule. Dinesh Chandra Sangma v. State of Assam, AIR 1978 SC 17: 1978(1) SCR 607: 1977(4) SCC 441: 1978(2) SCJ 88: 1977 SLR 622: 1977 Lab IC 1852: 1978(1) SLR 25. (ii) Where two Constructions Possible — One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. Govind Lal Chaggan Lal Patel v. Agriculture Produce Market Committee, AIR 1976 SC 263: 1975(2) SCC 482: 1976(1) SCR 451. It is well recognised canon of construction that the construction which makes the rule otiose or unworkable should be avoided where two constructions are possible and the Court should lean in favour of the construction which would make the rule workable and further the purpose for which the rule is intended. Dr. N.C. Singhal v. Union of India, AIR 1980 SC 1255: 1980(3) SCR 44: 1980(3) SCC 29: 1980(2) SLR 118: 1980 SLJ 408: 1980 Lab IC 710; State of Kerala v. M.K. Krishnan Nair, AIR 1978 SC 747: 1978(2) SCR 864: 1978(1) SCC 552: 1978(2) SCJ 531: 1978(1) SLR 499 (SC). (iii) Harmonious construction — When the rules legislative in character, they must harmoniously be interpreted as a connected whole giving life and force to each word, phrase and rule and no part thereof should be rendered nugatory or a surplusage. Resort to iron out the creases could be had only when the construction of the relevant rule, phrase or word would lead to unintended absurd results. Keshav Chandra Joshi v. Union of India, AIR 1991 SC 284: 1992 Supp (1) SCC 272: 1990 Supp (2) SCR 573: 1990(2) Scale 951. (iv) Notes to the Rules — The notes to the rules make explicit what is implicit in the rules. Notes which are appended to the rules are of aid not only in applying the rules but also in interpreting the true import of the rules. The real purpose of the notes is that when rules are silent the notes fill up gaps. Tara Singh v. State of Rajasthan, AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86: 1975 Lab IC 1046: 1975(1) SLR 777: 1976 SLJ 619. When a note is in conflict with the rule, that has to be ignored.

R.1]

GENERAL

11

Dr. R.V.N. Sinha v. State of Bihar, 1976(2) SLR 363. Where the provision of a rule is clear, note cannot be utilised to whittle down what has been provided in the rule. Narayan Chandra Halder v. Union of India, 1981(1) SLR 678. (v) Proviso to a Rule — (i) It is well established rule of interpretation of statute that a proviso cannot be so constructed as to eat away the rule to which it is proviso. R.K. Gupta v. Delhi istration, 1979 SLJ 121: 1979(1) SLR 785. The Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. Tahsildar Singh v. State of U.P., AIR 1959 SC 1012: 1959 CrLJ 1231: 1959 Supp (2) SCR 875: 1959 MLJ (Cri) 759: 1959 (2) Andh WR (SC) 201. A proviso cannot expand or limit the principle provision and it must be read and considered in relation to the principal matter to which it is proviso and that it is not a separate or independent enactment. Dwarka Prasad v. Dwarka Dass, AIR 1975 SC 1758: 1976(1) SCR 277: 1976(1) SCC 128: 1975 RCR 712: 1975 RCJ 593. (vi) Clarification of the Rules — Normally, the Rules framed under the proviso to Article 309, cannot be amended except in accordance with procedure laid down therein. But in the instant case, the question was whether a clarification issued by the Govt. could be construed as an amendment to the rules. Even under the rules, it is specifically stated that a Degree or Diploma in Electrical Engineering from a recognised university or its equivalent would be the requisite qualification for promotion to the cadre of Executive Engineer. In the Rules, some of the recognised universities are also mentioned and ittedly, these institutions are not awarding any Diploma. The rules say that equivalent qualification also would be considered. There is nothing wrong in the appointing authority issuing a clarification as to what would be the equivalent qualification for the purpose of appointment. When the universities do not offer the Diplomas prescribed under the Rules, the rule itself becomes meaningless and nugatory. Under the Rules, the candidates are asked to produce a certificate which is neither in existence nor awarded. It was at this juncture that the Govt. issued a clarification that the Diploma awarded by recognised institutions, which are d to the State Board of Technical Education in Haryana, would be considered as equivalent. Therefore the clarification was held to be valid. O.P. Lather v. Satish Kumar Kakkar, AIR 2001 SC 821: 2001(3) SCC 110: 2001(2) JT 280. (vii) Mandatory and directory — It is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter they cannot be broken; others are only directory and a breach of them can be over-looked provided there is substantial compliance with the rules read as whole an provided no prejudice ensues; and when the legislature does not itself state which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines. Pratap Singh v. Shri Krishna Gupta, AIR 1956 SC 140: 1956 SCJ 143: 1955(2) SCR 1029. The use of the word “shall” in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to

12


[R.1

say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word “may” has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912: 1957 All LJ 921: 1958 Mad LJ: 1958 SCJ 150: 1958 SCR 533. There is no doubt that the word “may” generally does not mean “must” or “shall”. But it is well-settled that the word “may” is capable of meaning “must” or “shall” in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word “may” which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word “may” out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. State of Uttar Pradesh v. Jogendra Singh, AIR 1963 SC 1618: 1963 All LJ 617: 1963(2) Lab LJ 444: 1964(2) SCR 197. Therefore the word “may” is capable of meaning “must” or “shall” in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word “may” which denotes discretion should be construed to mean a command. Shri Rangaswami, The Textile Commissioner and others v. The Sagar Textile Mills (P) Ltd., AIR 1977 SC 1516: 1977(2) SCC 578: 1977(2) SCR 825. No general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity or only director, i.e., a direction the non-observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case the Court has to decide the legislative intent. Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849: 1961 BLJR 589: 1962(1) SCR 33. (viii) Rule of procedure are not by themselves an end but the means to achieve the ends of justice. rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. Thes reason is obvious. Procedure is meant to subserve and not rule the cause of justice. When the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a

R.1]

GENERAL

13

purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system. Owner and Parties interested in M.V. “Vali Pero” v. Fernandeo Lopez, AIR 1989 SC 2206: 1989(4) SCC 671: 1989 Supp. (1) SCR 187: 1989(4) JT 100. 21. Rules, Unilateral: Alteration of — Rules can be unilaterally altered by Government without consent of the employee. Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889: 1968(1) SCR 185: 1967 SLR (SC) 832: 1968(1) LLJ 576. 22. Rules cannot be Altered or Amended by istrative or Executive Instructions — The Government is not competent or alter the rules framed under Article 309 by means of istrative instructions. State of Haryana v. Shamsher Jang Bahadur, 1972 SLR 441: AIR 1972 SC 1546: 1973(1) SCR 249: 1972(2) SCC 188: 1973(2) SCJ 582: 1972 Lab IC 824: 1972(2) LLJ 186; State of Punjab v. Madan Singh, AIR 1972 SC 1429: 1974(3) SCC 90: 1973(1) SCJ 82: 1972 SLR 446; D.K. Gupta v. Municipal Corporation of Delhi, 1979(3) SLR 416: 1978 SLJ 525; Dr. (Miss) Subhash Kaushal v. State of Punjab, 1982(1) SLJ 684. Retrospective operation of service rules could not be given by mere Executive instructions. Where the Rules framed by the Society are not statutory rules and they can be amended by a resolution of the competent body and any legislation or framing of rules under Article 309 of the Constitution is not required. I.C.A.R. v. Satish Kumar, 1998(4) SCC 219: AIR 1998 SC 1782: 1998(3) JT 9: 1998(2) SLR 808: 1998(3) SLJ 155: 1998 Lab IC 1596. 23. Rules cannot be Modified by Executive Orders — A rule framed under the proviso to Article 309 of the Constitution cannot be modified by an executive order. State of Maharashtra v. Chandra Kant Anant Kulkarni, 1981(2) SLJ 280: 1982(1) SLR 697 (SC). Executive instructions cannot prescribe departmental test. State of Punjab v. Madan Singh, 1982(1) SCR 665: 1981(4) SCC 130: AIR 1981 SC 1990: 1981 Lab IC 1568: 1982(1) SLR 697: 1981(2) SLJ 280: 1981(2) LLJ 433: 1981(3) SLR 326: 1981 SCC (Lab) 562. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. K. Kuppusamy v. State of Tamil Nadu, 1998(8) SCC 469. When the Rules provide different treatment to class I and class II service respectively then without the amendment of the rules, the Class II of the service can not be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a Government Order and ignoring the mandate of Article 309 of the Constitution. Rajinder Singh v. State of Punjab, AIR 2001 SC 1769: 2001(4) JT 538: 2001(5) SCC 482. The provisions of statutory Rules cannot be taken away by a suggestion of the executive until and unless the Rules are appropriately amended. N.K. Pankajaksha Nair v. P.V. Jayaraj, 2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141. The proviso to rule 2 of Fundamental Rules prohibits modification or replacement of provisions of Fundamental Rules itself in exercise of power under Article 309 of the Constitution to the disadvantage of the person already in service. It has no reference to any other Rule which a Governor could frame under proviso to

14


[R.1

Article 309 of the Constitution. In that view of the matter the proviso to Rule 2 of the Fundamental Rules cannot affect the power of the Governor to amend the Pension Rules in exercise of his power under the proviso to Article 309 of the Constitution. Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR 1997 SC 3439: 1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91: 1997 Lab IC 3361. By an executive order the statutory rules cannot be whittled down nor can any retrospective effect be given to such executive orders so as to destroy any right which became crystallised. Uday Pratap Singh v. State of Bihar, 1994 Supp (3) SCC 451: 1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1) SLJ 123: 1994(69) FLR 1148. Even rules framed under Article 309 of the Constitution cannot affect or impair vested rights, unless it is specifically so provided in the concerned statutory rules. T.R. Kapur & Ors. v. State of Haryana, AIR 1987 SC 415. It is obvious that an executive direction stands even on a much weaker footing. Uday Pratap Singh v. State of Bihar, 1994 Supp (3) SCC 451: 1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1) SLJ 123: 1994(69) FLR 1148. 24. Relaxation of Rules — There can be no relaxation of the basic or fundamental rules of recruitment. Suraj Parkash Gupta v. State of Jammu & Kashmir, AIR 2000 SC 2386: 2000(7) SCC 561: 2000(5) JT 413: 2000 Lab IC 2588: 2000(4) SLR 486. 25. Validity of Rule cannot be Affected by Reason of Inconsistency with Prior Executive Order — The rule being statutory in origin, its validity cannot be affected by reason of any inconsistency with the provisions of a prior executive order issued by the Central Government. Wg. Commander J. Kumar v. Union of India, AIR 1982 SC 1064: 1982(2) SCC 116: 1982(3) SCR 453.: 1982(1) SLJ 452: 1982(1) SLR 715: 1982 Lab IC 1586. 25 (i) Gaps in Rules, Filling by istrative or Executive Instructions — (i) Government cannot amend or supersede statutory rules by istrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910: 1968(1) SCJ 672: 1968(1) SCR 111: 1968(2) LLJ 830; Lalit Mohan Deb v. Union of India, 1973(1) SCJ 92: AIR 1972 SC 995: 1972 SLR 411: 1972 Lab IC 543; State of Haryana v. Shamsher Jang Bahadur, 1973(2) SCJ 582: AIR 1972 SC 1546: 1972(2) SCC 188: 1973(1) SCR 249; District Registrar, Palghat v. M.B. Koyyakutty, AIR 1979 SC 1060: 1979(3) SCR 242: 1979(2) SCC 150: 1979 SLJ 278: 1979(1) SLR 628: 1979 Lab IC 803; Union of India v. N.R. Sundram, 1982(2) SLR 393. The executive instructions may supplement but not supplant the rules. Bishundeo Mahto v. State of Bihar, 1982 Lab IC 1446. (ii) Breach of Executive or istrative Instructions — A circular containing instructions cannot be ignored where it filled up the gaps and supplemented the statutory rules. Gurnam Singh v. State of Rajasthan, 1973(1) SCJ 267: 1971(2) SCC 452; Satya Dev Dogra v. Union of India, 1973 SLJ 32 (Delhi); D.P. Pathak v. State of Punjab, 1980 SLJ 559: 1980(1) SLR 346.

R.1]

GENERAL

15

26. istrative or Executive Instruction: (i) Where no Rules — As long as there is neither any legislative enactment nor any statutory rules framed by the Governor or the President, the conditions of service or other matters relating to employees can be regulated by the issuance of istrative instructions in exercise of the executive power of the Government. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: 1955(2) SCR 225: 1955 SCJ 504; B.N. Nagarajan v. State of Mysore, 1967(2) SCJ 664: AIR 1966 SC 1942: 1966(3) SCR 682: 1967(15) FLR 332; Harikishan Singh v. State of Punjab, 1967 Cur LJ 833; Amin Chand Karwasra v. Lt. Governor, H.P., 1971(2) SLR 906; Mallinath Jain v. Municipal Corporation, Delhi, 1973 SLJ 239: 1973(1) SLR 413; Dr. Amarjit Singh Ahluwalia v. State of Punjab, AIR 1975 SC 894: 1975 SLJ 220: 1975(1) SLR 171: 1975 Lab IC 613. One set of istrative instructions can be modified by another set of istrative instructions. D.K. Gupta v. Municipal Corporation of Delhi, 1979(3) SLR 416: 1978 SLJ 525; Gurnam Singh v. State of Rajasthan, 1971(2) SLR 799: 1973(1) SCJ 267 SC. (ii) istrative/Executive Instructions cannot Modify Rule — An istrative instruction cannot modify rule. One set of istrative instructions can however be modified by another set of istrative instructions. Som Nath v. Union of India, 1973(1) SLR 737: 1973 SLJ 619; Gurnam Singh v. State of Rajasthan, 1971(2) SLR 799 (SC); Sant Ram Sharma v. State of Rajasthan, 1968(1) SCJ 672: 1968(1) SCR 111: AIR 1967 SC 1910; Ramesh Kumar Mishra v. State of M.P., 1979(3) SLR 232; D.K. Gupta v. Municipal Corporation of Delhi, 1978 SLJ 525: 1979(3) SLR 416; Kartar Singh v. State of Punjab, 1982(1) SLR 307. Executive instructions requiring the date of birth of an employee should not be corrected at least two years before superannuation cannot override the provisions of Educational Rules (Kerala Education Rules, 1959, Chapter 14, Rule 18). Kunhikrishnan v. State of Kerala, 1983(1) SLR 452, 453, 454, paras 5 and 6 Ker (FB). (iii) istrative/Executive Instructions or Directives, Inconsistent or Contrary to Rule under Article 309 Invalid — If a circular or any part of it gives istrative instructions contrary or opposed to any of the rules, the circular or that part of the circular to that extent will be invalid. Gurnam Singh v. State of Rajasthan, 1973(1) SCJ 267: 1971(2) SLR 799: 1971(2) SCC 452; Prahlad Singh v. State of U.P., 1976(2) SLR 752; S.L. Sachdev v. Union of India, 1980 Lab IC 1321: AIR 1981 SC 411: 1981(1) SCR 971: 1980(4) SCC 562: 1981(1) SLJ 115: 1980(4) SCC 562; Bishandeo Mahto v. State of Bihar, 1972 Lab IC 1446. (iv) istrative Instructions/Orders do Confer Rights and Duties — Even an istrative order confers rights and cannot be done away within an unauthorised manner. Harnam Singh v. State of H.P., 1974(3) SLR 350; Union of India v. K.P. Joseph, 1974(2) SCJ 276: 1973 SLJ 1: AIR 1973 SC 303: 1973(2) SCR 752: 1973(1) SCC 194 followed Premadhar Baruah v. State of Assam, AIR 1970 SC 1314: 1971(1) SCR 503: 1970(2) SCC 211: 1970 SLR 529: 1970 Lab IC 1067. (v) istrative Instructions, Publication of — It is highly desirable that the decisions should be given due publicity and one such method is to publish them in

16


[R.1

the Official Gazette but the publication in the Official Gazette is not the sine quo non of the validity of action taken under them. Balbir Singh v. State of Punjab, 1975(1) SLR 241. (vi) istrative or Executive Instructions with Retrospective Effect — Government is not competent to issue any executive instructions with retrospective effect. This is squarely within the legislative sphere. Dr. (Miss) Subhash Kaushal v. State of Punjab, 1982(1) SLJ 684. By an executive order the statutory rules cannot be whittled down nor can any retrospective effect be given to such executive orders so as to destroy any right which became crystallised. Uday Pratap Singh v. State of Bihar, 1994 Supp (3) SCC 451: 1994(6) JT 344: 1995(1) SCJ 304: 1994(5) SLR 608: 1995(1) SLJ 123: 1994(69) FLR 1148. A condition of service determined by an executive order cannot be subsequently altered retrospectively to the prejudice of a civil servant. Daljit Singh Narula v. State of Haryana, 1979(1) SLR 420. Because the amended rules cannot take away the vested right to be adjusted in a department upon appointment. Union of India v. Parmanand, 1996(10) SCC 434: 1996(9) JT 544: 1996(5) SLR 313: 1996(74) FLR 2658. Retrospective amendment of rules whereby the amount of pension payable reduced from the amount payable at the time of retirement thus taking away the vested right accorded to the employees. It was held that the amendment is invalid, arbitrary and unconstitutional being violative of Articles 14 and 16 as also the article 19(1)(f) & 31(1) of the Constitution which were in force at that time. Chairman, Railway Board v. C.R. Rangadhamaiah, AIR 1997 SC 3828: 1997(6) SCC 623: 1997(2) SCJ 523: 1997(4) LLN 7: 1998(78) FLR 222: 1997(4) SLR 759: 1998(3) SLJ 76: 1998 Lab IC 100; See also Bhakta Ramegowda v. State of Karnataka, AIR 1997 SC 1038: 1997(2) SCC 661: 1997(2) JT 325: 1997(1) LLJ 886: 1997(2) SLR 381: 1997(2) LLN 3: 1997(76) FLR 191: 1997 Lab IC 1290: 1998(1) SLJ 208. 27. istrative Instructions and Rules and Regulations, Distinction Between — Broadly stated, the distinction between rules and regulations on the one hand and istrative instructions on the other is, that rules and regulations can be made only after reciting the source of power whereas istrative instructions are not issued after reciting the source of power. Secondly, the executive power of a State is not authorised to frame rules under Article 162. The rules under Article 309 on the other hand constitute not only the constitutional rights of relationship between the State and the Government servants but also establish that there must be specific power to frame rules and regulations. Sukhdeo Singh v. Bhagatram Sardar Singh, AIR 1975 SC 1331: 1975(3) SCR 619: 1975(1) SCC 421: 1975(45) Comp Cas 285: 1975 Lab IC 881: 1975(1) SLR 605; see also Som Nath v. Union of India, 1973(1) SCR 737: 1973 SLJ 619. The statutory rules cannot be described as, or equated with, istrative directions. State of Uttar Pradesh v. Babu Ram Upadhya, 1961 AIR SC 751: 1961(1) CrLJ 773: 1961(2) SCR 679; But Government has the power to issue istration Order governing the service conditions of its employees in the absence of any statutory provisions governing the field. M.M. Dolichan v. State of Kerala, AIR 2001 SC 216: 2001(1) SCC 151: 2001 Lab IC 66: 2001 SCC (L&S) 174: 2000(7) SLR 217.

R.1]

GENERAL

17

28. Supplemental Instructions not to be Inconsistent with Rules — The supplemental instructions can only be issued by the Government which is competent to make the rules provided they are not inconsistent with the rules. Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910: 1968(1) SCR 111: 1967 SLR 906; Ram Rattan Bakhshi v. State of Punjab, AIR 1968 Punjab 436: 1968 Cur LJ 23; District Registrar, Palghat v. M.B. Kayyakutty, AIR 1979 SC 1960: 1969 SLJ 278: 1979(1) SLR 628: 1979(4) SCC 248: 1979(119) ITR 996. 29. Letter/Memorandum Whether has Status of Rule — The form of the letter/memorandum and its publication have to be borne in mind before the orders contained therein can be held to be amounting to rules. Sita Ram v. Speaker, Haryana Vidhan Sabha, 1972 SLR 756; I.N. Saxena v. State of M.P., AIR 1967 SC 1264: 1967(2) SCR 496: 1967 SLR 204: 1967(1) SCWR 665: 1967(2) LLJ 427. A letter of the Government of India has no statutory force and cannot be the basis for determining seniority. Vijaydevaraj Urs. v. G.V. Rao, 1983(1) SLR 292 (Kar) (paras 28 to 30). 30. Instructions by Governor, do not become Service Rules — Memorandum by Deputy Secretary conveying certain orders of the Governor to the Head of Department and the latter had been asked to take necessary action in the matter. The contents of memorandum could not become service rules. Jit Singh v. Secretary to Government, 1968 Cur LJ 331. 31. Presidential Resolution, Power of Government to Override — Government has no authority to override the Presidential Resolution by any subsequent decision which lacks legal authority. S.N. Karkhanis v. Union of India, 1974 SLJ 372: 1974(1) SLR 740: AIR 1974 SC 2302: 1974(3) SCR 589: 1974(4) SCC 360: 1974 SLJ 372. 32. Rules in Force Immediately before Commencement of Constitution — Rules framed by the Governor General in exercise of his powers under Section 241 of the Government of India Act, 1935, have been preserved under Article 313 of the Constitution and will continue so long as those rules were consistent with the provisions of the Constitution and were not superseded by other rules made under Article 309 of the Constitution. Union of India v. Shanti Swaroop, 1969 SLR 210. A departmental instruction which never acquired statutory force under the Government of India Act, 1919 does not become a statutory rule under Article 313 of the Constitution. ant General v. S. Doraiswamy, 1980(3) SLR 538 (SC): AIR 1981 SC 783: 1981(4) SCC 93: 1981 Lab IC 184: 1981(2) SCR 155. 33. Rules and Regulations by Public Undertakings and Statutory Bodies — Staff or service rules and regulations by Public Undertaking which are statutory corporations and statutory bodies have the legal force and the provisions are mandatory. Chitaranjan Roy v. Damodar Valley Corporation, 1973(1) SLR 538; Sukhdev Singh v. Bhagatram Sardar Singh, AIR 1975 SC 1331: 1975(3) SCR 619: 1975(1) SCC 421: 1975(1) SLR 605: 1975(45) Comp Cas 285.

18


[R.2

34. Repeal of rules — The effect of a rule being substituted by a new rule clearly is that the old rule, which stands substituted, can under no circumstances have any application at least from the date when it ceased to exist. Union of India v. C. Rama Swamy, AIR 1997 SC 2055: 1997(4) SCC 647: 1997(4) JT 605: 1997(2) SLR 584: 1997(2) LLN 619. Government orders which are legislative in character can be repealed by the subsequent rules and Tribunal can not direct to enforce the repealed orders. State of Andhra Pradesh v. Civil Suppliers Services Association, 2000(9) SCC 299: 2000(9) JT 602: 2000(4) LLN 27. 35. Strict compliance of Rules is required — The recruitment rules made under Article 309 of the constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-ing of the Public Service Commission is permitted, it will open a back door for illegal recruitment without limit. Anuradha Bodi v. Municipal Corporation of Delhi, 1998(5) SCC 293: AIR 1998 SC 2093: 1998(3) JT 757: 1998(4) SLR 359: 1999(1) SLJ 1: 1999(1) LLJ 560: 1998 Lab IC 1911. R.2

2.

Interpretation - In these rules, unless the context otherwise

requires, (a) “Appointing Authority” in relation to a Government servant, means— (i)

the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or

(ii)

the authority empowered to make appointments to the post which the Government servant for the time being holds, or

(iii)

the authority which appointed the Government servant to such Service, grade or post, as the case may be, or

(iv)

where the Government servant having been a permanent member of any other service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that service or to any grade in that service or to that post, whichever Authority is the highest authority;

(b) “Cadre Authority” in relation to a service, has the same meaning as in the rules regulating that service;

GENERAL

R.2]

19

(c) “Central Civil Service and Central Civil Post”, includes a civilian service or civilian post, as the case may be, of the corresponding class in the Defence Services; (d) “Commission” means the Union Public Service Commission; (e) “Defence Services” means service under the Government of India in the Ministry of Defence, paid out of the Defence Services Estimates, and not subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950); (f) “Department of the Government of India” means any establishment or organisation declared by the President by a notification in the Official Gazette to be a department of the Government of India; (g) “Disciplinary Authority” means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11; (h) “Government Servant” means a person who— (i)

is a member of a Service or holds a civil post under the Union, and includes any such person or foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority;

(ii)

is a member of a Service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government;

(iii)

is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government;

(i) “Head of the department”, for the purpose of exercising the powers as appointing, disciplinary, appellate or reviewing authority, means the authority declared to be the head of the department under the Fundamental and Supplementary Rules or the Civil Service Regulations, as the case may be; (j) “Head of the office” for the purpose of exercising the powers as appointing, disciplinary, appellate or reviewing authority, means the authority declared to be the head of the office under the General Financial Rules;

20


[R.2

(k) “Schedule” means the Schedule to these rules; (I) “Secretary” means the Secretary to the Government of India in any Ministry or Department, and includes— (i)

a Special Secretary or an Additional Secretary,

(ii)

a t Secretary placed in independent charge of a Ministry or Department,

(iii)

in relation to the Cabinet Secretariat, the Secretary to the Cabinet,

(iv)

in relation to the President”s Secretariat, the Secretary to the President, or, as the case may be, the Military Secretary to the President,

(v)

in relation to the Prime Minister”s Secretariat, the Secretary to the Prime Minister, and

(vi)

in relation to the Planning Commission, the Secretary or the Additional Secretary to the Planning Commission;

(m) “Service” means a civil service of the Union.

COMMENTARY SYNOPSIS Clause (a) “Appointing Authority” 1.

Appointing authority — powers of .................................................................................. 22

2.

Appointing authority to act with application of mind....................................................... 23

3.

Appointing authority — Power to take disciplinary action ............................................. 24

4.

Appointing authority — Power to initiate disciplinary action ......................................... 24

5.

Appointing authority cannot delegate its powers of dismissal or removal ....................... 24

6.

Appointing authority of District Judges and persons of Judicial Service of the State ...... 25

7.

Appointing authority when becomes defunct ................................................................... 25

8.

Appointment by authority having no power to appoint .................................................... 25

Clause (c) “Civil Post”: 9.

“Civil Post” - meaning of ................................................................................................ 25

10. Whether holder of civil post, tests to be applied............................................................... 26 11. Civil post includes all personnel employed in civil affairs ............................................... 26 12. “Announcer” in All India Radio ....................................................................................... 27

R.2]

GENERAL

13. Chairman of Improvement Trust ...................................................................................... 27 14. Contingent paid employees ............................................................................................. 27 15. Contractor of Railway tea and refreshment stalls ............................................................. 27 16. Copyists and typists in Court of Bihar ............................................................................. 27 17. C.R.P.F. ............................................................................................................................ 27 18. Defadars and chokidars appointed under village Chowkidari Act.................................... 27 19. Employees of Canteen Services Department (India) ........................................................ 27 20. Employees of college ed under Societies Registration Act .................................. 27 21. Employees of Co-operative Society or Bank.................................................................... 27 22. Employees of Council of Scientific and Industrial Research ........................................... 27 23. Employees of Electricity Board ....................................................................................... 28 24. Employees of Hindustan Steel Ltd. .................................................................................. 28 25. Employees of Indian Institute of Technology, Delhi ........................................................ 28 26. Employees of Indian Oil Corporation .............................................................................. 28 27. Employees of Indian Standards Institution ....................................................................... 28 28. Employees of Life Insurance Corporation, Industrial Finance Corporation and Oil & Natural Gas Commission ................................................................................................. 28 29. Employees of Local Authorities ....................................................................................... 28 30. Employees of Reserve Bank of India ............................................................................... 29 31. Employees of Road Transport Corporation ...................................................................... 29 32. Employees of Sainik Schools Society .............................................................................. 29 33. Employees of State Bank of India .................................................................................... 29 34. Employees of Statutory Corporations............................................................................... 29 35. Extra departmental branch Post Master or Sub-Post Master ............................................ 29 36. Extra departmental delivery agent .................................................................................... 30 37. General Manager, Court of Wards ................................................................................... 30 38. Homeguard ....................................................................................................................... 30 39. Honorary Officers ............................................................................................................ 30 40. Insurance Medical Practitioner ......................................................................................... 30 41. Mali in Bihar Raj Bhawan ................................................................................................ 30 42. Mauzadar in Assam valley ............................................................................................... 30 43. Notary ............................................................................................................................. 30 44. lawyer ..................................................................................................................... 31 45. Public Prosecutor ............................................................................................................. 31 46. Part-time employees ......................................................................................................... 31 47. Secretary under Bombay Village Panchayat Act.............................................................. 31 48. Secretary under Karnataka Village and Local Boards Act, 1959 ..................................... 31 49. Staff Artist of All Indian Radio ........................................................................................ 31

21

22


[R.2

50. Tehsildar .......................................................................................................................... 31 51. Teacher in Panchayat service ........................................................................................... 31 52. Trainees ............................................................................................................................ 32 53. Village Munsif ................................................................................................................. 32 54. Work Charged Establishment, Chowkidar ....................................................................... 32 55. Dhobis in Military Academy……………………………………………………… ......... 32 56. of Company Law Board ................................................................................... 32 57. Kurk Amins appointed on commission basis ................................................................... 32 58. Employees of statutory canteen ........................................................................................ 32 59. Judge of High Court ......................................................................................................... 32

Clause (d) See also Allied Service Matters - Public Service Commission Clause (g) 60. Delegation of powers ....................................................................................................... 33

Clause (h) 61. Government or Municipal servant .................................................................................... 34

Clause (m) 62. Member of a service ......................................................................................................... 34 63. Civilian post in defence service.................................................................................

34

Clause (a). 1. Appointing Authority: Powers of — (i) It is a fundamental principle of interpretation that unless a contrary intention appears from the contract, a power to appoint should include a power to terminate the appointment, including termination of the person appointed by his compulsory retirement in accordance with the and conditions of his service. The fundamental principle underlies Section 16 of the General Clauses Act. S.R. Tiwari v. District Board, Agra, 1964(3) SCR 55: AIR 1964 SC 1680: 1964(2) SCJ 300: 1966(13) FLR 104; State of Tamil Nadu v. M.N. Sundarajan, 1980 (3) SLR 451: 1981(1) SLJ 36; As regards competant authority to issue chargesheet, see Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708: 1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1 and Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996(6) JT 450: 1996 SCC (L&S) 433: 1996(32) ATC 663: 1996(2) SLR 470: 1996(1) UJ 424: 1996(74) FLR 2510: 1996(2) LLN 515: 1997(2) LLJ 191.

R.2]

GENERAL

23

See also Karnataka State Road Transport v. K.C. Mudalgirappa, 1988(1) SLR 106 Kar. (ii) The power of appointment carries with it the power to dismiss, discharge, remove an employee or to terminate his services in accordance with the conditions of employment. Post Graduate Institute of Medical Education v. Sham Lal, 1974 SLJ 365: 1974 (2) SLR 814; Union of India v. Gurbaksh Singh, AIR 1975 SC 641: 1975(3) SCR 444: 1975(3) SCC 638: 1975 SLJ 554: 1975(1) SCJ 351. (iii) Power of delegatee is circumscribed by the instructions of delegation and can be validly exercised only within the ambit of the delegation. Delegation made by the General Manager Railways extends only to the power to appoint, and not the power to take disciplinary action. Gafoor Mia Kansal v. Director, DMRL, 1988(4) SLR 445 (CAT Hyderabad). (iv) A delegatee of the appointing authority cannot initiate disciplinary proceedings, only by virtue of the fact that he has been delegated with the power to appoint unless he is also designated as a disciplinary authority. Such authority cannot impose major punishment if it is lower in rank than the authority which appointed the particular Railway servant or Government servant. Gafoor Mia Kansal v. Director, DMRL, 1988(4) SLR 445 (CAT Hyderabad). (v) The power of “appointment” conferred by Article 229(1) includes the power to suspend, dismiss, remove or compulsory retirement from service. Chief Justice of A.P. v. I.V.A. Dixitulu, 1979(1) SLR 1: 1979 SLJ 332: AIR 1979 SC 193: 1979(2) SCC 34: 1978 Lab IC 1672. (vi) Where the authorities which had appointed a civil servant to service or to the grade or to a particular post are different for the purpose of the rule and therefore, for Article 311 of the Constitution, the appointing authority would be the highest of the three authorities. K.K. Mittal v. Union of India, 1974(2) SLR 602; Dharma Dev Mehta v. Union of India, AIR 1980 SC 557: 1980(2) SCR 554: 1980(2) SCC 205: 1980 Lab IC 383: 1980(1) SLR 414. See also State Bank of India, Hyderabad v. Ch. Hanumantha Rao, 1988(4) SLR 703 (AP) (vii) The competent authority to suspend an officer is appointing authority or any subordinate authority on whom the power of disciplinary authority has been conferred by the Governor by general or special order. Held that suspension order by such delegate is valid. A.K. Jadhav v. State of Madhya Pradesh, 1997(9) SCC 240: AIR 1997 SC 2394: 1997(4) JT 583: 1997(2) SLR 804: 1997(76) FLR 266: 1997(2) SCJ 125: 1997 Lab IC 2339. 2. Appointing authority to act with application of mind — As per the relevant rules, competent authority to impose penalty of dismissal was Chairman-cumManaging Director but he had mechanically approved the proposal of the Director (Commercial) who had also not examined the matter before making his proposal. Held that whenever an Authority decides a matter, which entails civil consequences to the person concerned, it must speaking order giving reasons. Held further that the

24


[R.2

Chairman-cum-Managing Director who is the Competent Authority to impose the penalty of dismissal upon the petitioner has not ed the impugned order of dismissal after applying his mind to the inquiry report, representation of the petitioner against the inquiry report and other facts and circumstances on record. He had mechanically approved the proposal of the Director (Commercial), who had also not examined the matter before making his proposal. In fact, the matter has been dealt with as routine istrative matter, whereas, it was a quasi-judicial matter involving service career of the petitioner and the Competent Authority was required to speaking order by giving reasons for imposing the penalty after considering the inquiry report, representation of the petitioner and other material concerning disciplinary proceedings on record. Ashok Paper Mills Kamgar Union v. Union of India, 2000(10) SCC 28: 2000(2) LLJ 659: 2000(4) LLN 18: 2000(87) FLR 437. 3. Appointing authority — Power to take disciplinary action — Article 311 gives protection to a member of a civil service of the Union or an all-India service or a civil service of a State or to a person holding a civil post under the Union or a State against dismissal or removal by an authority subordinate to that by which he was appointed. Article 311 does not provide that a member of a civil service or a person holding a civil post either under the Union or a State cannot be dismissed or removed by an authority except the appointing authority. Held that there is no requirement that the authority which takes disciplinary action must continue to have the power of making appointment to the civil service or on a civil post under the Union or a State. It can be any other authority so long as it is not subordinate in rank or grade to the authority by which the delinquent Government servant was appointed. That is the only requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v. Uttar Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC 727: 1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) UJ 540: 1996(2) LLJ 729: 1996(3) SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465. 4. Appointing authority — Power to initiate disciplinary proceedings — It is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the appointing authority. Steel Authority of India v. R.K. Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT 379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57: 1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6) SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929; Registrar of Co-operative Societies v. F.X. Fernando, 1994(1) SCR 959: 1994(1) JT 666: 1994(2) SCC 746: 1994(27) ATC 188: 1994(1) SLJ 124: 1994(1) SLR 820: 1994(68) FLR 769: 1994(1) LLN 847: 1994(1) LLJ 819; Additional Supdt. of Police v. T. Natarajan, 1998(9) JT 257: 1999(3) LLJ 1482: 2000(85) FLR 39. 5. Appointing Authority cannot Delegate its Powers of Dismissal or Removal — Article 311(1) of Constitution provides that the holder of a civil post shall not be dismissed or removed by an authority subordinate to that by which he was appointed. It is implicit that the appointing authority has to personally apply its mind to the question and he cannot delegate such a function. Management of Delhi Transport

R.2]

GENERAL

25

Undertaking v. B.B.L. Hajelay, AIR 1972 SC 2452: 1973(2) SCR 114: 1972(2) SCC 744: 1972 SLR 787: 1973 SCJ 19. Where however the President or the Governor is the appointing authority, the decision of Minister or Officer under the rules of business is the decision of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the minister”s department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister. Shamsher Singh v. State of Punjab, 1975(1) SCR 814: AIR 1974 SC 2192: 1974(2) SCC 831: 1974(2) SLR 701: 1974 Lab IC 1380. 6. Appointing Authority of District Judges and Persons of Judicial Service of the State — The Governor is the appointing authority. Appointment or dismissal or removal of persons belonging to the judicial service of the State is not personal function of the Governor but is an executive functions exercised in accordance with the rules in that behalf under the Constitution. The decision of Minister or Officer under the rules of business, is the decision of the President or the Governor. Shamsher Singh v. State of Punjab, 1975(1) SCR 814: AIR 1974 SC 2192: 1974(2) SCC 831: 1974(2) SLR 701: 1974 Lab IC 1380: M.M. Gupta v. State of J&K, AIR 1982 SC 1579: 1983(1) SCR 593: 1982(3) SCC 412: 1983(1) SLR 160: 1982 Lab IC 1970: 1983(1) SLJ 82. Also see rules 8 & 9, Note 9. 7. Appointing Authority when Becomes Defunct — Where an appointing authority has ceased to exist and its corresponding authority has been declared by competent authority then the defunct authority”s status must be determined by the corresponding authority thus created. Harbans Lal v. Union of India, 1970 SLR 173. 8. Appointment by Authority having no power to Appoint — If a person is found to have been appointed by an authority who had no power or jurisdiction to make such an appointment and on whom the Government has not delegated any such power of appointment, the person so appointed cannot be said to have held a post under the State which might attract the provisions of Article 311. Narayan Das v. Deputy Commissioner of Darrang, Tezpur, AIR 1972 Assam 57. see also H. Lyngdoh v. Cromlyn Lyngdoh, AIR 1971 SC 1110: 1971(3) SCR 903: 1971(2) SLR 330: 1971(1) SCC 754, where the appointment was made without sanction and the services were also terminated without sanction. See also K.M.Agrahare v. Chief Secy. Delhi n., 1989(3) SLR 357 (CAT, New Delhi). Where the appointment was made by the Commandant General even though the rule conferred power on the Provincial Government to make such appointments, held, the Commandant General had the power to dismiss the appointee. The dismissal order would not be void on the ground that it is made by an authority lower than the appointing authority. Rama Nand Singh v. State of Bihar, 1982(1) SLR 693 (SC).

Clause (c). 9. “Civil Post” - Meaning of — In Article 311 a civil post means a post not connected with defence outside the regular civil service. A post is a service or employment. A person holding a post under a State is a person serving or employed

26


[R.2

under the State. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State”s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia in conjunction with other circumstances, and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. In the context of Articles 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds “office”, during the pleasure of the Governor of the State, except as expressly provided by the Constitution. A post under the State means a post under the istrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. State of Assam v. Kanak Chandra Dutt, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461: 1967(1) SCWR 228: AIR 1967 SC 884, see also Bihar State Typists” & Copyists” Union v. State of Bihar, 1973(1) SLR 749: 1973 SLJ 512; Union of India v. M.A. Chaudhory, 1975(1) SLR 300: 1975 Lab IC 423; Superintendent of Post Offices v. P.K. Rajamma, 1977(3) SCR 678: AIR 1977 SC 1677: 1977(3) SCC 94: 1977 SLJ 532: 1977 SLR 226: 1977(2) SCJ 321. It is now settled law that the expression “civil post under the Union or a State” in Article 311 means an appointment or office on the civil side of the istration as distinguished from a post under the Defence Services and that the Article excludes only the of Defence Services and persons holding any post connected with defence. Ganga Prasad Gurung v. Vijay Kumar, 1982 Lab IC 1884; State of Assam v. K.C. Datta, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461: 1967(1) SCWR 228: AIR 1967 SC 884. 10. Whether Holder of Civil Post, Tests to be Applied — Lord Thankerton in the case of Short v. J&W Henderson Ltd., reported in (1946) 174 LT 417, has laid down four tests to determine whether a person is holder of a civil post:— (a) the master”s power of selection of his servant, (b) the payment of wages or other remuneration, (c) the master”s right to control the method of doing the work, and (d) the master”s right of suspension, or dismissal. Dr. Nanigopal Ghose v. State of West Bengal, AIR 1970 Cal 1. The Central Civil Services (CCA) Rules, 1965 are not applicable to civilians drawing salary from Ministry of Defence. Union of India v. V.K.S. Subramanian, 1989(10) ATC 513 (SC). 11. Civil Post Includes All Personnel Employed in Civil Affairs — Civil post includes all, its personnel, whether permanent or temporary or officiating employed in civil affairs of the Union or a State. Mohini Mohan Chakravarty v. State of Tripura, AIR 1959 Tripura 2. A casual labourer is not the holder of a civil post. State of Assam v. Kanak Chandra Dutt, 1967(2) SCR 7: 1967(63) ITR 656: 1967(2) SCJ 461: 1967(1) SCWR 228: AIR 1967 SC 884; Ganga Prasad Gurung v. Vijay Kumar, 1982 Lab IC 1884. See also Ranjit Kumar Manjumdar v. Union of India, 1995 SCR Supp(5) 717: 1996(1) SCC 51: 1996(1) SLR 35 (SC).

R.2]

GENERAL

27

12. “Announcer” in All India Radio — “Announcer” in the All India Ratio holds a civil post and is entitled to the protection of Article 311(2) of the Constitution. Ilyas Ahmad v. Station Director, All India Radio, Hyderabad, 1979 SLJ 592: 1979(2) SLR 651 (AP). 13. Chairman of Improvement Trust — Holds a civil post under the State Government. Durga Prasad Tripathy v. State of Orissa, 1982(1) SLJ 1. 14. Contingent paid employees — Contingent paid persons do not hold civil post. Mahendra Lal Chakrabarti v. Union Territory, AIR 1959 Tripura 21. 15. Contractor of Railway Tea and Refreshment Stalls — Contractor of Railway tea and refreshment stalls is not a Railway servant and is not entitled to claim protection under Article 311. Nanik Awatrai Chainani v. Union of India, 1971(2) SCJ 636: 1970(2) SCR 321: 1970 SLR 858. 16. Copyists and Typists in Courts of Bihar — Copyists and typists of the revenue, civil and criminal courts, including the High Court, in the State of Bihar are not Government Servants. They do not hold civil posts and the provision of Article 311 are not applicable to them. Bihar State Typists” & Copyist” Union v. State of Bihar, 1973 SLJ 512: 1973(1) SLR 749. 17. C.R.P.F. — The armed Force is a civil service and posts in it are civil posts. U.B.S. Teotia v. Union of India, 1980(1) SLR 698; Ranjit Kumar Manjumdar v. Union of India, 1996 SCR Supp(5) 717: 1996(1) SCC 51: 1996(1) SLR 35 (SC). 18. Dafadars of Chowkidars Appointed under Village Chowkidari Act — Defadars or chowkidars appointed under Village Chowkidari Act (Bengal Act VI of 1870) hold a civil post under the State within the meaning of Article 311 of the Constitution. Rajpati Dubey v. State of Bihar, 1973 SLJ 770. 19. Employees of C.S.D.(I) — Employees working in the establishment of Canteen Services Department (India) are civil servants. Vigyan Bhushan Aggarwal v. Union of India, 1977 SLJ 645: 1978(1) SLR 84. 20. Employees of College ed under Societies Registration Act — Such employees do not hold civil post. Anand Krishna Purohit v. Board of Governors, Regional Engineering College, Kurukshetra, 1972 SLR 597: 1972 Cur LJ 525. 21. Employees of Co-operative Society or Bank — Employees of Cooperative society or Provincial Co-operative Bank do not hold civil post under the State. Ram Nath Sharma v. State of M.P., AIR 1959 MP 218; Chaturbhuj Sahai v. Chairman, Board of Directors, AIR 1935 Pat 223; Dharampal Soni v. State of Punjab, 1973(2) SLR 845; Krishna Lal Pahwa v. State of Haryana, 1974 SLJ 229. 22. Employees of Council of Scientific and Industrial Research — The council is a ed society and is not a public body, nor it is a Government. Its employees do not hold civil post. Director General of Health Services v. Bikash Chatterjee, AIR 1969 Cal 525: 1970 SLR 355. The Council is not an authority within the meaning of Article 12 of the Constitution. Sabhajit Tewari v. Union of India, AIR

28


[R.2

1975 SC 1329: 1975(3) SCR 616: 1975(1) SCC 485: 1975 SLJ 410: 1975(1) SLR 422: 1975 Lab IC 819. 23. Employees of Electricity Board — Employees of State Electricity Board are neither member of the Civil Service of the Union or a State or hold a civil post under the Union or a State and are not protected under Article 311. Jai Dayal v. State of Punjab, AIR 1965 Punjab 316; Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857: 1967(3) SCR 377: 1967 SLR 373: 1970(21) FLR 59: 1968(1) LLJ 257, Punjab State Electricity Board is not a “State” and its employees do not enjoy any statutory status. Nirvir Singh v. Punjab Electricity Board, 1973(1) SLR 277: AIR 1973 Punjab 322; Raj Kumar Kulshreshtra v. Secretary, Rajasthan State Electricity Board, 1979(2) SLR 733. 24. Employees of Hindustan Steel Ltd. — Hindustan Steel Ltd. is not a department of the Government and its servants are not holders of civil posts. Dr. S.L. Agarwal v. General Manager, Hindustan Steel Ltd., AIR 1970 SC 1150: 1970(3) SCR 363: 1970(1) SCC 177: 1970(1) SCWR 188: 1970(2) SCJ 605: 1970 SLR 351. 25. Employees of Indian Institute of Technology of Delhi — The appointment of each employee by respondent is contractual. There is an ordinary relationship of master and servant between them and nothing more. V. Ramamurthy v. Indian Institute of Technology, 1973(1) SLR 701: 1973 SLJ 62 (Delhi). 26. Employees of Indian Oil Corporation — The employees of Indian Oil Corporation Ltd. are not civil servants and cannot claim benefit of the Constitutional protection granted under Article 311 or the rules framed under the proviso to Article 309. D.M. Nagaraja Rao v. Indian Oil Corporation Ltd., 1970 SLR 475. 27. Employees of Indian Standards Institution — Employees of Indian Standards Institution do not hold civil post under the Union and are not entitled to protection under Article 311. B.L. Bhatia v. Indian Standards Institution, 1973(2) SLR 694: 1974 SLJ 51. 28. Employees of Life Insurance Corporation of India, Industrial Finance Corporation and Oil and Natural Gas Commission — They are statutory status and are entitled to seek declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. These employees are not servants of the Union or the State. Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331: 1975(3) SCR 619: 1975(1) SCC 421: 1975(1) SLR 605: 1975 Lab IC 881: 1975(47) FJR 214: 1975(45) Comp Cas 285. 29. Employees of Local Authorities — Employees of District Boards, Municipalities, Town Improvement Trust, Executive Officers of Panchayat or Municipalities, do not hold civil post and are not entitled to protection under Article 311. Hanuman Thappa R v. Special Officer, District Board, AIR 1960 AP 341; M. Yugandhra Rao v. Government of A.P., AIR 1959 AP 506; S.R. Tewari v. District Board, Agra, AIR 1964 SC 1680: 1964(3) SCR 55: 1964(2) SCJ 300: 1966(13) FLR 104: 1964(1) LLJ 1; Anup Singh v. State of Haryana, 1969 SLR 850; Ram Piari v. Municipal Committee, AIR 1956 Punjab 220; Pramod Ranjan Dass v. Cuttack

R.2]

GENERAL

29

Municipality, 1973 SLJ 490; M. Srinivasan v. President of District Board, AIR 1968 Mad 211. 30. Employees of Reserve Bank of India — Employees of the Reserve Bank of India do not hold a civil post under the Union Government and therefore provisions of Article 311(2) have no application to them. T.S. Varghese v. Reserve Bank of India, 1980(1) SLR 857. 31. Employees of Road Transport Corporation — Employees of State Road Transport Corporation do not hold civil post and are not protected under Article 311. General Manager, Pepsu Road Transport Corporation v. S. Gurdip Singh, 1964(66) PLR 1040; Mafatlal Narain Dass Barot v. Rathod, 1967(1) SCWR 30: AIR 1966 SC 1364: 1966(3) SCR 40: 1967(1) SCJ 64. 32. Employees of Sainik Schools Society — Sainik Schools Society is a Society ed under Societies Registration Act, 1860. Employees of, do not hold a civil post. K.C. Thomas v. R.L. Gadeock, AIR 1970 Pat 164. 33. Employees of State Bank of India — (i) Employees of State Bank of India do not hold post under the Union or a State. They are employees of a company incorporated under the State Bank of India Act, 1955. Article 311 does not apply to them. Suprasad Mukherjee v. State Bank of India, AIR 1960 Cal 72; Baleshwar Prasad v. Agent, State Bank of India, AIR 1959 Pat 418. (ii) Whether writ could issue against State Bank of India, whether its employee could obtain declaration that termination of his service was a nullity and he continued in service? See V. Ramiah v. State Bank of India, AIR 1964 Mad 335; Ramesh Krishna Rao v. State Bank of India, 1974(2) SLR 622. 34. Employees of Statutory Corporations — Employees of statutory corporations generally do not hold civil post. Statute under which the company or corporation was created requires examination to hold the post unless it is a civil post under the State. Abani Bhushan v. Hindustan Cables Ltd., AIR 1968 Cal 124; Ranjeet Kumar Chatterjee v. Union of India, AIR 1969 Cal 95. In Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331: 1975(3) SCR 619: 1975(1) SCC 421: 1975 Lab IC 881: 1975(1) SLR 605: 1975(45) Comp Cas 285, the Supreme Court has held that Oil and Natural Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation are statutory bodies and authorities within the meaning of Article 12 of Constitution. The employees of these bodies have a statutory status but they are not servants of the Union or State. Also see Amar Nath Bhatia v. Trade Fair Authority of India, 1982(2) SLR 670: 1982(2) SLJ 204. Employees of statutory corporations though must be entitled to the protection of Article 311 of the Constitution are entitled to the protection of Article 14 to 16 of the Constitution. V. Rajagopal Reddy v. A.P.S.E.B. Hyderabad, 1984(1) 1 Andh LT 442 (AP). 35. Extra-departmental Branch Post Master or sub-Post Master — Extra departmental Post Masters hold civil post. A. Surya Rao v. SPO, 1972 SLR 428; Superintendent of Post Offices v. P.K. Rajamma, AIR 1977 SC 1677: 1977(3) SCR 664:

30


[R.2

1977(3) SCC 260: 1977 Lab IC 904: 1977 SLJ 532: 1977(2) SLR 226: 1977(2) SCJ 321; Jogendra Bahadur v. Senior Supdt. of Post Office, 1972 SLR 799 (All). An extradepartmental officer in the Postal Department holds a “civil post”. A.P. Augustine v. Superintendent of Post Offices, 1984(2) SLR 163 (Ker), following Superintendent of Post Offices v. P.K. Rajamma, 1977(2) SLR 226. 36. Extra Departmental Delivery Agent — Extra departmental delivery agent holds a “civil post”. Subhas Chandra Das v. Inspector of Post Offices, AIR 1969 Kerala 244: 1968 SLR 337; Jogendra Bahadur v. Senior Superintendent of Post Offices, 1972 SLR 799: 1972 ALJ 693; Superintendent of Post Offices v. P.K. Rajamma, AIR 1977 SC 1677: 1977(3) SCR 664: 1977(3) SCC 260: 1977 Lab IC 904: 1977 SLJ 532: 1977(2) SLR 226: 1977(2) SCJ 321; Union of India v. Kameshwar Prasad, 1997(11) SCC 650; Sub-Divisional Inspector of Post, Vaikam v. Theyyam Joseph, AIR 1996 SC 1271: 1996(8) SCC 489: 1996(2) JT 457: 1996 Lab IC 1059: 1996(72) FLR 690: 1996 SCC (L&S) 1012: 1996(2) SCJ 370: 1996(2) LLJ 230: 1996(88) FJR 597: 1996(2) LLN 82. 37. General Manager, Court of Wards — General Manager, Court of Wards in Bihar holds a civil Post under the State. P.N. Sarkar v. State of Bihar, AIR 1960 Pat 366. 38.. Homeguard — Homeguard appointed under the West Bengal Homeguards Act, 1962, holds a civil post and is therefore entitled to all protection under Article 311 of the Constitution. Debabrata Banerjee v. Superintendent of Police, 24 Parganas, 1981(1) SLR 568: 1981(1) SLJ 328 (Cal.). 39. Honorary Officers — An Honorary Medical Officer under Government holds civil post. Rebecea Chand Pillai v. State of Kerala, 1961 KLT 662. 40. Insurance, Medical Practitioner — Medical Practitioner under the Employee”s State Insurance Act, 1948 does not hold a civil post under the Government. Dr. Nanigopal Ghose v. State of West Bengal, AIR 1970 Cal 1. 41. Mali in Bihar Raj Bhawan — Mali in Raj Bhawan of Bihar is a servant of a semi private nature even though he is paid from the Government funds. Lachmi v. Military Secretary, AIR 1956 Pat 398. 42. Mauzadar in Assam valley — “Mauzadar” in Assam valley whose primary duty is to collect land revenue and other Government dues with the collection of which he is entrusted, is responsible for the collection of toll tax, house tax, tauzibahar revenue, grazing fees and forest dues, has to submit weekly reports upon the condition of crop, the prevalence of epidemics amongst men or cattle etc., is a holder of civil post having regard to the system of his recruitment, employment and functions even though he gets a commission on the collection by way of remuneration. State of Assam v. Kanak Chandra Dutt, 1967(1) SCWR 228: AIR 1967 SC 884: 1967(1) SCR 679: 1968(1) LLJ 288: 1967(14) FLR 299: 1967(2) SCJ 461. 43. Notary — Notary appointed under Notaries Act, 1952 does not hold a civil post. Phagu Ram v. State of Punjab, AIR 1965 Punjab 220: 19675 PLR 37.

R.2]

GENERAL

31

44. Lawyer — The position of a Lawyer is that of an officer under the State within the meaning of Article 16(1) of Constitution. Suresh Prakash Aggarwal v. State of U.P., 1971(2) SLR 326. 45. Public Prosecutor — (i) Office of Public Prosecutor is a Public Office. A Mohambaram v. M.A. Jayavelu, AIR 1970 Mad 63. (ii) Public Prosecutor in Andhra Pradesh who is not appointed to the cadre in State Service does not hold a civil post. B.V. Chalapathi v. State of A.P., 1969(2) Andh WR 465: 1970 SLR 192. (iii) Under Orissa Law Officers Rules, the appointment as Public Prosecutor and Government Pleader is not an appointment to a post. The relationship of master and servant is not brought by this appointment. The appointee is engaged on certain to do duties assigned to him. Sudhansu Sekhar Misra v. State, 1976(1) SLR 477: 1976 Lab IC 821. 46. Part-time Employees — A post outside the regularly constituted services may be a part time employment. State of Assam v. Kanak Chandra Dutt, 1967(1) SCWR 228: AIR 1967 SC 884: 1967(1) SCR 679: 1968(1) LLJ 288: 1967(14) FLR 299: 1967(2) SCJ 461. 47. Secretary under Bombay Village Panchayat Act — The post though civil is not under the State. Ranchhodbhai Desaibhai v. Collector, AIR 1967 Guj 62. 48. Secretary under Karnataka Village and Local Boards Act, 1959 — When sub-section (2) of Section 80 of the Karnataka Village and Local Boards Act, 1959 states that subject to the provisions of Rules made under the proviso of Article 309 of the Constitution, the qualifications, powers, duties, remuneration and conditions of service including disciplinary matters of such Secretary shall be such as may be prescribed, it leaves no room for doubt that the Secretaries of the Panchayats are Government servants, like other Government servants, who are subjected to the Rules to be made under the proviso to Article 309 of the Constitution as regards their service conditions. R.N.A. Britto v. Chief Executive Officer, AIR 1995 SC 1636: 1995(4) SCC 8: 1995(4) JT 582: 1995(2) SCJ 209: 1995(2) SLR 699: 1995(30) ATC 159: 1995(2) SLJ 222: 1996(1) LLN 17. 49. Staff Artist of All India Radio — In view of the service conditions and the Agreement executed, it was held that he holds a civil post. Union of India v. M.A. Chaudhary, 1975 Lab IC 423: 1975(1) SLR 360. 50. Tehsildar — Tehsildar appointed by Government treasurer holds a civil post under the state and can claim benefit of Article 311. State of U.P. v. Audh Narain Singh, AIR 1965 SC 360: 1964(7) SCR 89: 1964(9) FJR 238: 1964(2) SCJ 590. 51. Teacher in Panchayat Service — Teacher under the Gujarat Panchayat Act is to be treated as a member of the State Civil Service. Mathura Das v. S.D. Munshaw, AIR 1981 SC 53: 1981(1) SCJ 433. Teacher under Rajasthan Panchayat Service is the holder of a civil post under the State. Mehtab Ali Khan v. B.D.O., Panchayat Samiti, 1981(2) SLR 539.

32


[R.2

For the termination of service of temporary teacher for outraging modesty of a girl student see Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1997(10) JT 461: 1996(8) AD(SC) 539: 1997(1) SLR 270 (SC). 52. Trainees — Those person who were undergoing training with a view to subsequently take service under the State, and were under an obligation to do so, were serving in connection with the affairs of the State. Beant Singh Bath v. Union of India, 1969 SLR 304. 53. Village Munsif — Office of village Munsif under the Madras State was an office under the State. Gazula Dasratha Rama Rao v. State of A.P., AIR 1961 SC 564: 1961(3) SCR 931: 1961(1) SCJ 310. 54. Work Charged Establishment, Chowkidar — WD Manual, Vol. III (1972 Edn). If the services are terminated by way of punishment, he has the right to insist on the fullest compliance with the provisions of Article 311 as he is a temporary servant and not a mere causal employee. Ganga Prasad Gurung v. Vijay Kumar, 1982 Lab IC 1884. 55. Dhobis in Military Academy — Dhobis appointed to wash clothes of the cadets and paying from the funds called “Regimental Fund”, can not be said to be holders of civil post. Union of India v. Chotelal, AIR 1999 SC 376: 1999(1) SCC 554: 1999(2) SLR 545: 1999(2) SLJ 15: 1999 Lab IC 428: 1999(1) LLN 685. 56. of Company Law Board — On the question whether of Company Law Board hold a civil post submissions were made that post of a Member (Technical) Company Law Board was neither an All India Service nor a Civil Service of the Union nor a Civil post under the Union. However the question was left open to be decided in an appropriate matter. A.K. Doshi v. Union of India, AIR 2001 SC 1369: 2001(4) SCC 43: 2001(3) JT 367. 57. Kurk Amins appointed on commission basis for recovery of outstanding dues of the co-operative societies were of service and government servants. State of Uttar Pradesh v. Chandra Prakash Pandey, 2001(4) SCC 78: 2001(4) JT 145: AIR 2001 SC 1298. 58. Employees of statutory canteen maintained by Telecommunication Department of Government are persons holding civil posts. Bombay Telephone Canteen Employees” Association, Prabhadevi v. Union of India, AIR 1997 SC 2817: 1997(9) SCC 723: 1997(6) JT 57: 1997(2) LLN 1038 : 1997(2) LLJ 647: 1997(77) FLR 25: 1997(91) FJR 251: 1997(4) SLR 721. 59. Judge of High Court— The relationship between the Government and High Court Judges is not of master and servant. They cannot be said to be holding a post under the Union/State. Union of India v. Pratibha Bonnerjea, AIR 1996 SC 693: 1995(6) SCC 765: 1996 SCC(L&S) 92: 1996(32) ATC 58: 1996(1) SLR 20: 1996(72) FLR 93: 1996(1) LLN 29.

R.2]

GENERAL

33

Clause (g) 60. Delegation of Powers — Under the Central Civil Services (Classification, Control and Appeal Rules), 1985, Rule 4 states that the Civil services under the Union shall be classified as Class A,B,C and D posts. Under Rule 6-A the word “group” has to be substituted for the word “class” wherever the word “class” occurs. The appointment to Class I (i.e. Group A) service and posts are to be made by the President of India as per Rule 6 of the C.C.A. Rules. The proviso to Rule 9, however, says that the President may, by a general or special order and subject to such conditions as he may specify in such order, delegate to any other authority the power to make such appointments so far class II, III, IV (i.e. Group B, C, D) are concerned. Rule 9 states that the appointing authorities are specified in the schedule of CCA Rules, 1985. In other words, the power of the President to appoint persons to Group B, C, D posts has been delegated but not the power to appoint to Group A posts. Mohammed Swaleh v. Union of India, 1997(6) SCC 200: 1997(10) JT 749: 1997(4) SLR 608: 1998(1) SLJ 1. In the absence of any statutory provision expressly or impliedly permitting the delegation of disciplinary powers, the disciplinary authority, if decides that disciplinary action should be taken, must itself frame the charges and hold an inquiry into them. He cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. Union of India v. P.K. Roy, 1968(2) SCJ 503: 1968(II) SCWR 41: 1968 SLR 104: AIR 1968 SC 850; Shardul Singh v. State of M.P., AIR 1966 MP 193; Pradyot Kumar v. C.J. of Calcutta, AIR 1956 SC 285: 1955(2) SCR 1331: 1956 SCJ 259; See also Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1998(9) JT 81: 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124. An employee cannot be removed or dismissed by an authority other than by which he was appointed unless the appointing authority has made prior delegation of such authority to such other person or authority in writing. Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1998(9) JT 81: 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124. Plea that disciplinary officer was only “in charge of the particular post and hence incompetent to act” was rejected. G.N. Sundarraja v. Post Master, Kolar, 1990(2) SLR 624 (CAT Bangalore). The “delegation of the function of the High Court in respect of punishment of judicial officers” is an expression of width and of wide amplitude to cover within its ambit the power to take a decision by the Committee from the stage of initiation of disciplinary proceedings, if necessary, till its logical end, viz., recommendation to the Government to impose a penalty proposed by the Committee. The recommendation is by the High Court, the controlling authority under Article 235 of the Constitution. Therefore, it is difficult to accept the contention that the delegation is only for imposition of punishment on judicial officers. High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631: 1997(6) SCC 339: 1997(2) LLN 470: 1997(76) FLR 659: 1997(2) SCJ 320: 1997(2) UJ 152: 1997(4) SLR 321.

34


[R.3

Clause (h) 61. Government Servant or Municipal Servant — The question, whether a person is a Government servant or a municipal servant can be determined by the functions which he performs. If he performs the functions relating to a municipal committee, he is a municipal officer, but if he performs the functions relating to Government, he is a Government servant. State of Punjab v. Prem Prakash, AIR 1957 Punjab 219: 1957 PLR 270; Ram Chandra v. State of U.P., AIR 1969 All 480. The Government service originates from a contract but on appointment the Government servant acquired a status subject to rights and obligations governed by statute or statutory rules. Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR 1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91: 1997 Lab IC 3361.

Clause (m) 62. Member of a Service — A person cannot be deemed to be a member of service unless he is permanently absorbed therein. State of Punjab v. Prem Prakash, AIR 1957 Punjab 219: 1957 PLR 270; Laxminarayan v. Union of India, AIR 1956 Nag 113. Past service rendered in different service can not be counted towards seniority. Dev Raj Gupta v. State of Punjab, 2000(8) SLT 375: 2001(4) JT 82. Where rules so provide a probationer can not claimed to be a member of service unless the appointed authority so provides. M.P. Chandoria v. State of Madhya Pradesh, AIR 1996 SC 2397: 1996(11) SCC 173: 1996(73) FLR 1699: 1996(2) UJ 326: 1996(3) SCJ 20: 1996(4) SLR 62. 63. Civilian Post in Defence Service — The CSS (CCA) Rules, 1965 is applicable to the posts in defence service. Ranjit Kumar Majumdar v. Union of India, 1996(1) SCC 51: 1996(1) SLR 35 (SC): 1995(8) JT 350: 1996 SCC (L&S) 255: 1996(32) ATC 200.

R.3

3

. Application — (1) These rules shall apply to every Government servant including every civilian Government servant in the Defence Services, but shall not apply to— (a)

any railway servant, as defined in Rule 102 of Vol. I of the Indian Railway Establishment Code,

(b)

any member of the All India Services,

(c)

any person in casual employment,

GENERAL

R.3]

35

(d)

any person subject to discharge from service on less than one month”s notice,

(e)

any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.

(2) Notwithstanding anything contained in sub-rule (1), the President may be order exclude any class of Government servants from the operation of all or any of these rules. (3) Notwithstanding anything contained in sub-rule (1), or the Indian Railway Establishment Code, these rules shall apply to every Government Servant temporarily transferred to a service or post coming within exception (a) or (e) in sub-rule (1), to whom, but for such transfer, these rules would apply. 1

[(3A) Notwithstanding anything contained in these Rules, where any civilian Government servant in the Defence Services is temporarily made subject to the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), or the Air Force Act, 1950 (46 of 1950), these rules shall continue to apply to such civilian Government servant in the Defence Services and, for the purpose of discipline, he shall be dealt with under these rules unless the appropriate authority, for reasons to be recorded in writing, is of the opinion that sterner action is called for and directs that he be dealt with under the Act he is subject to.] (4) If any doubt arises — (a) whether these rules or any of them apply to any person, or (b) whether any person to whom these rules apply belongs to a particular Service, the matter shall be referred to the President, who shall decide the same.

1

This rule remained in force during the Proclamation of Emergency only in 1971 and now it is no more in operation.

36


[R.3


Classes of Government servants excluded from the operation of these rules under Subrule (2) .............................................................................................................................. 36

2.

Application of Part VI of these rules to work charged establishment ............................... 37

3.

Application of rules to temporary Government servants and probationers ...................... 37

4.

Civilian Government servants in Defence Services whether entitled to protection and procedure provided by these rules .................................................................................... 38

5.

Sub-rule (3-A), duration of .............................................................................................. 40

1. Classes of Government servants excluded from the operation of these Rules under Sub-rule (2) — Following classes of Government servants have been wholly excluded by the President, from the operation of these rules:—. (1) Ministry of External Affairs: Locally recruited staff in Mission abroad. (2) Ministry of Communications: (Post & Telegraphs Department). (i) Extra-departmental agents. (ii) Monthly rated staff paid contingencies other than those brought on to regular establishment. (iii) Monthly-rated work charged and other employees not on regular establishment. (iv) Daily rated staff paid from contingencies. (v) Daily rated workmen paid by the day, week, month, etc. (vi) All hot weather and monsoon establishments. (vii) Non departmental telegraphists and telephone operators. (3) Ministry of Home Affairs: Police officers upto the rank of Inspector of Police in Delhi Special Police Establishment. (4) Ministry of Works and Housing: Work-charged personnel of—. (i) the Central Public Works Department,. (ii) the President”s Garden Establishment,. (iii) the Estate Office. (5) Work charged personnel of—. (i) The Mangalore Projects. (ii) The Tuticorin Harbour Project.

R.3]

GENERAL

37

2. Application of Part VI of these Rules to Work charged Establishment — If the order is made by way of punishment without following the prescribed procedure it is invalid. Murlidhar Yeshwant Mayenkar v. Union of India, 1982(1) SLJ 699: 1982(2) SLR 482; Ganga Prasad Gurung v. Vijay Kumar, 1982 Lab IC 1884. The principles of natural justice is the best measure if there is absence of statutory rules or istrative constructions. Asi Mohammad Shri v. Union of India, 1994(1) SLR 637 (CAT New Delhi). One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as “Debet esse Judex in Propria Causa”, which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal or there may be bias as to the subject-matter etc. See Financial Commer. (Taxation) Punjab v. Harbhajan Singh, 1996(9) SCC 281 relied in Amar Nath Chowdhury v. Braithwaite and Company Ltd., AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ 1048: 2002(1) SCJ 268. 3. Application of Rules to Temporary Government Servants and Probationers — If misconduct is the foundation to the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated, in of the order of appointment or rules giving one month”s notice or pay salary in lieu thereof. Even if an enquiry was initiated, it could be dropped midway and action could be taken in of the rules or order of appointment. State of Uttar Pradesh v. Prem Lata Misra, AIR 1994 SC 2411: 1994(4) SCC 189: 1994(27) ATC 558: 1994(2) SLR 708: 1994(2) SLJ 167: 1994(2) LLN 427: 1995(1) LLJ 28. The services of a temporary Government servant or a probationer can be terminated under the rules of his employment but if the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be done by way of punishment and the punishment could be awarded only after enquiry under these rules. State of Punjab v. Sukhraj Bahadur, 1969(1) SCJ 51: AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701; Asi Mohammad Shri v. Union of India, 1994(1) SLR 637 (CAT, New Delhi). Once a casual employee attains the “temporary” status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by the Article 311 of the Constitution and other Articles dealing with services under the Union of India. See Nar Singh Pal v. Union of India, AIR 2000 SC 1401: 2000(3) SCC 588: 2000(1) LLJ 1388: 2000(96) FJR 502: 2000(2) SLR 592: 2000(3) SLJ 332: 2000 Lab IC 1377: 2000(2) LLN 407: 2000(85) FLR 458. Article 311 of Constitution extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them.

38


[R.3

Purshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36; State of U.P. v. Saughar Singh, AIR 1974 SC 423: 1974(1) SCC 218: 1975(1) SCJ 12: 1974 SLJ 474: 1974(1) SLR 435: 1974(2) SCWR 80; State of Maharashtra v. V.G. Koppar, AIR 1981 Bom 131. When employee is appointed on a project and for the duration of that project, the question of his services continuing automatically thereafter do not arise. IRCON International Ltd. v. Daya Shankar, AIR 2002 SC 2404: 2002(9) SCC 691: 2001(10) JT 360: 2002 AIRSCW 2620: 2002 Lab IC 2319: 2002(1) LLJ 548: 2002(3) ESC 16: 2002(1) SLR 563 (SC). When the posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration come to an end on of the need for the project itself having come to an end either because the project was fulfilled or had to be abandoned wholly or partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999 SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC). A temporary teacher in a leave vacancy cannot be considered as discharged nor claim the status as discharged employee. Discharge would connote for any other reason ejusdem generis due to abolition of the post or course of study or such similar circumstances except for discharge due to misconduct. Such a teacher only will be eligible to set up preferential claim for appointment but not a teacher who fortuitously came to be appointed in a leave vacancy much less for a limited period. State of Kerala v. Mother Anasthasia, Superior General, AIR 1997 SC 1310: 1997(1) SLR 705: 1997(10) SCC 79: 1997(2) LLN 618: 1997(76) FLR 1: 1997 Lab IC 1522. 4. Civilian Government Servants in Defence Services whether Entitled to Protection and Procedure provided by these Rules — There is a broad division of Government servants in two classes, namely, those belonging to the Defence Department and others. Even amongst the Government servants under the Defence Department there are two sub-categories; those belonging to the Armed Forces who are governed by the Army Act, Air Force Act and Navy Act, as the case may be, and those who are not so governed. The former will be having a rank in the force but the civilians under the Defence Department would be discharging duties akin to civilians elsewhere and will not be governed by the Army Act, Air Force Act or the Navy Act as they will not be having any rank in the force. For the service conditions of such civilian employees the President had made the Rules under Article 309 of the Constitution known as Civilians in Defence Services (Classification, Control & Appeal) Rules, 1952. These rules have however been repealed vide Rule 34 of the Central Civil Service (Classification, Control & Appeal) Rules, 1965. From 1st December, 1965 the Central Civil Services (Classification, Control & Appeal) Rules, 1965 apply to every civilian Government servant in the Defence Services. These rules merely lay down procedure for matters covered by Article 311 of the Constitution. Proceedings under Article 311 constitute an exception to the doctrine of pleasure contained in Article 310. The power contained in Article 310 governs all

R.3]

GENERAL

39

Government servants, including those in the services connected with defence. The benefits of Article 311, which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts “connected with defence”. If the employee (holder of posts connected with defence) was not entitled to the protection of Article 311, the only effect of these 1965 Rules upon his case is that they could be applied if disciplinary proceedings had been taken against him as the holder of a post “connected with defence”. In other cases of such servants, where no such disciplinary proceedings, are instituted, the 1965 Rules, governing procedure for punishments to be imposed, will not apply at all. The legal obligation to apply them to every case of punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. Union of India v. K.S. Subramonian, AIR 1976 SC 2433: 1976 SLJ 539: 1976(2) SLR 519. See also Ranjit Kumar Majumdar v. Union of India, 1996(1) SCC 51: 1996(1) SLR 35 (SC): 1995(8) JT 350: 1996 SCC (L&S) 255: 1996(32) ATC 200. It was clarified by the Supreme Court in the above cited case that the doctrine of pleasure contained in Article 310, while subject to Article 311, is not subject to the Rules or Acts made under Article 309. It was, therefore, held that the Government was bound to follow the Central Civil Services (Classification, Control & Appeal) Rules, 1965 only where the concerned Government servant was entitled to the protection of Article 311; but not otherwise. In as much as the plaintiff was held not entitled to the protection of Article 311 being holder of a post connected with the Defence the following of the procedure prescribed by CCA Rules was held not to be obligatory. In other words, the ratio of decision is that though the said Rules by their own force, apply to holders of civil posts connected with Defence, still the Government is not bound to follow the procedure prescribed by the said Rules, in the case of such persons. The Government may choose to follow these Rules, or may not. It was reiterated that since the said Rules cannot override the pleasure doctrine contained in Article 313, the concerned Government servant cannot be granted any relief for not following the procedure prescribed by the said Rules for termination. O. Ramachandra Reddy v. Director, Defence, Research & Development Laboratory, 1980(1) SLR 490. Also see V.Y. Thomas v. Commandant, A.D.C., 1982 Lab IC 632: 1982(2) SLR 39 (AP); Hazara Singh v. Union of India, 1982(1) SLR 623. Therefore it was held that employees serving in Defence can not claim any protection under Art. 311 of the Constitution and CCS(CCA) Rules, 1965, which have been framed under Art. 309 and subject to Art. 311. Union of India v. Indrajit Datta, 1995 Supp (3) SCC 229: 1995(5) SLR 228. Income Tax Officer, while exercising quasi judicial functions, completed assessments in an undue haste and conferred undue favour upon the assessees and in violation of Conduct rules. It was held that there was no immunity from disciplinary proceedings for a person exercising quasi judicial functions. Government is not precluded from initiating disciplinary proceedings against such employee. Union of India v. K.K. Dhawan, 1993(1) SLR 700: 1993(1) SLJ 396. The disciplinary action can be taken in the following cases: i) Where the officer had acted in a manner as would reflect on his reputation for integrity good faith or devotion to duty;

40


[R.3

ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty; iii) if he has acted in a manner which is unbecoming of a government servant; iv) if he had acted negligently or that he omitted the prescribed conditions which Are essential for the exercise of the statutory powers; v) if he had acted in order to unduly favour a party; vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago “though the bribe may be small, yet the fault is great.” While laying down above instances it has been held that the instances catalogued are not exhaustive but at the same time for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Union of India v. K.K. Dhawan, AIR 1993 SC 1478: 1993(1) SCR 296: 1993(2) SCC 56: 1993(1) JT 236 (SC): AIR 1993 SC 473: 1993 Lab IC 1028: 1993(1) SLJ (SC) 102: 1993(2) ATC 1: 1993(1) Cur LR 415: 1993(66) FLR 443: 1993(1) LLJ 777: 1993(1) LLN 1119: 1993 SCC (L&S) 325: 1993(1) SLR 700: 1993 AIR SCW 1361: 1993(1) SPJ 396 see also Union of India v. R.K. Desai, 1993(2) SCC 49; Union of India v. A.N. Saxena, 1992(3) SCC 123: 1992(4) SLR 11 (SC); Zunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881: 1999(7) SCC 409: 1999(5) JT 366: 1999(112) ELT 772: 1999(7) SLT 66: 1999(94) ECR 29: 2000(6) SLR 276 (SC). 5. Sub-rule (3-A), Duration of — This Sub-rule remained in force till the emergency proclaimed on 3 rd December, 1971 was in force.

CLASSIFICATION

R.4-7]

41

PART II

CLASSIFICATION R.4-7

4

. Classification of Services — (1) The Civil Services of the Union shall be classified as follows:— (i) Central Civil Service, Group A; (ii) Central Civil Service, Group B; (iii) Central Civil Service, Group C; (iv) Central Civil Service, Group D; (2) If a Service consists of more than one grade, different grades of such Service may be included in different groups.

5.

Constitution of Central Civil Services — The Central Civil Services, Group “A”, Group “B”, Group “C” and Group “D” shall consist of the services and grades of service specified in the Schedule.

6.

Classification of Posts — Civil Posts under the Union other than those ordinarily held by persons to whom these rules do not apply, shall, by a general or special order of the President, be classified as follows:— (i) Central Civil Posts, Group A; (ii) Central Civil Posts, Group B; (iii) Central Civil Posts, Group C; (iv) Central Civil Posts, Group D;

6A.

All references to Central Civil Service/Central Civil Posts, Class I, Class II, Class III, Class IV in all Rules, Orders, Schedules, Notifications, Regulations, Instructions in force, immediately before the commencement of these rules shall be construed as references to Central Civil Service/Central Civil Posts, Group “A”, Group “B”, Group “C”, Group “D”, respectively, and any reference to “Class or Classes” therein in this context shall be construed as reference to “Group or Groups”, as the case may be.

42


[R.4-7

7.

General Central Service — Central Civil Posts of any Group not included in any other Central Civil Service shall be deemed to be included in the General Central Service of the corresponding Group and a Government servant appointed to any such post shall be deemed to be a member of that Service unless he is already a member of any other Central Civil Service of the same group.


Classification of Civil Services of the Union.. ................................................................. 43

2.

Constitution of Central Civil Services .............................................................................. 43

3.

Classification of posts ...................................................................................................... 43

4.

Grade and class, meaning of............................................................................................. 45

5.

Post, meaning of .............................................................................................................. 47

6.

Posts and judicial review .................................................................................................. 47

7.

Permanent post, meaning of ............................................................................................. 48

8.

Temporary post, meaning of ............................................................................................ 48

9.

Temporary posts and judicial review................................................................................ 48

10. Tenure post, meaning of ................................................................................................... 49 11. Cadre - meaning and Constitution of................................................................................ 49 12. Cadre, integration of ........................................................................................................ 49 13. t cadre for Union Territories ...................................................................................... 51 14. Ex-cadre posts are temporary ........................................................................................... 51 15. Ex-cadre posts, creation and abolition of ......................................................................... 51 16. Cadre and judicial review ................................................................................................. 52 17. Rank, meaning of ............................................................................................................ 52 18. Office under the State: Law Officers of High Court ...................................................... 52 19. Constitution of Service or creation of a post .................................................................... 52 20. Creation and abolition of posts ......................................................................................... 52 21. Equation of posts in new department ............................................................................... 54 22. Abolition of post and compulsory transfer to University ................................................. 54 23. Abolition of post and transfer of company ....................................................................... 55 24. Claim of holder of post..................................................................................................... 55 25. Services and posts in Union Territory .............................................................................. 56

R.4-7]

CLASSIFICATION

43

26. Appointment made against gazetted post without gazetted status .................................... 56 27. Promotion with condition to draw emoluments of lower post .......................................... 56 28. General Central Service, a residuary service .................................................................... 56 29. Service, member of .......................................................................................................... 56

1. Classification of Civil Services of the Union — Rule 4 lays down that the Civil Services of the Union shall be classified as Central Civil Services, Group A, Group B, Group C and Group D. Present Rule was substituted vide Notification dated the 11 th November, 1975 for old rule 4 which ran as follows:—. “4. Classification of Services — (1) The Civil Services of the Union shall be classified as follows:-. (i) Central Civil Services, Class I;. (ii) Central Civil Services, Class II;. (iii) Central Civil Services, Class III;. (iv) Central Civil Services, Class IV;. 2. If a service consists of more than one grade, different grades of such service may be included in different classes”. 2. Constitution of Central Civil Services — Rule 5 deals with the constitution of Central Civil Services. This rule was substituted vide Notification dated the 11 th November, 1975 for old Rule 5 which ran as follows:. “6. Constitution of Central Civil Services — The Central Civil Services, Class I, Class II, Class III and Class IV shall consist of the Services and grades of Services specified in the Schedule”. 3. Classification of Posts — Rule 6 was substituted vide Notification dated 11th November, 1975 for the old Rule 6 which was as under:—. “6. Classification of Posts — (1) Civil Posts under the Union other than those ordinarily held by persons to whom these rules do not apply, shall by a general or special order of the President, be classified as follows:—. (i) Central Civil Posts, Class I; (ii) Central Civil Posts, Class II;. (iii) Central Civil Posts, Class III;. (iv) Central Civil Posts, Class IV;. (2) Any order made by competent authority, and in force immediately before the commencement of these rules, relating to classification of civil posts under the Union shall continue to be in force until altered, rescinded or amended by any order made by the President under Sub-rule (1)”.

44


[R.4-7

The President vide aforesaid Notification has directed that all civil posts under the Union shall (subject to such exceptions as Government may, by any general or special order, make from time to time), be reclassified in Group A, Group B, Group C and Group D, as the case may be, as indicated below:—. Existing Classification

Revised Classification.

Class I

Group A.

Class II

Group B.

Class III

Group C.

Class IV

Group D.

Provided that—. (i) the classification of any posts created or deemed to have been created on or after 1.1.1973 in revised scale but before the date of issue of this order, as specific additions to cadres existing prior to 1.1.1973, shall be the same as that of the posts in the cadres to which they have been added, and. (ii) any other posts not covered by (i) above created or deemed to have been created in the revised scale of pay on or after 1.1.1973 but before the date of issue of this order having a classification higher than the one envisaged by para 2 of this order shall be reclassified in of that paragraph but without prejudice to the status of the existing incumbent of such posts. 2. Subject to reclassification of posts as indicated above and also subject to such exceptions as Government may, by any general or special order, make from time, all Central Civil Posts created subsequent to the issue of this order shall be classified as follows:—.

Sl. No.

Description of Posts

Classification of Posts

1.

A Central Civil Post carrying a pay or a scale of pay with a maximum of not less than Rs. 1,300

Group A

2.

A Central Civil Post carrying a pay or a scale of pay with a maximum of not less than Rs. 900, but less than Rs. 1,300

Group B

3.

A Central Civil Post carrying a pay or a scale of pay with a maximum of over Rs. 290, but less than 900.

Group C

4.

A Central Civil Post carrying a pay or a scale of pay the maximum of Rs. 290, or less.

Group D

R.4-7]

CLASSIFICATION

45

Provided that posts created subsequent to the issue of this order as specific additions to existing cadres shall have the same classification as posts in the cadre to which they are added. Note — for the purpose of this order,—. (i) “pay” has the meaning assigned to it in F.R. (21)(a)(i). (ii) the pay or scale of pay of a post means the pay or scale or pay prescribed under the Central Service (Revised Pay) Rules, 1973. 4. Grade and Class, Meaning of — (i) Appointment are said to be in the same class when they are in the same department, and bear the same designation or have been declared by the Government of India to be in the same class. Appointment in the same class are sometimes divided into grades according to pay (Article 29, Civil Service Regulations). Where there are a larger number of employees in any department and where the employees are not likely to get their promotion in the near future because of their comparatively low position in the seniority list, Government has found it necessary that, in order to remove frustration, the employees are to be given a higher grade in of emoluments while retaining them in the same category. This is what is generally known as the time bound promotion. Such a time bound promotion does not effect the normal seniority of those higher up. Dwijen Chandra Sarkar v. Union of India, AIR 1999 SC 598: 1999(2) SCC 119: 1999(1) SLR 39: 1999(1) LLJ 338: 1998(1) SCJ 519: 1998 Lab IC 914: 1998(1) LLN 621. It is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they ed the service the requirement of ing the matriculation was not needed and while they are in service such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. State of Jammu & Kashmir v. Shiv Ram Sharma, AIR 1999 SC 2012: 1999(3) SCC 653: 1999 Lab IC 2096: 1999(2) SLR 247 (SC). Selection grade is provided to avoid stagnation at the highest slab in the grade. It implies that when an employee has reached the maximum of his scale or he continues to work in the same scale for a number of years, he may lose interest on of stagnation. Therefore, the Government has evolved the system of giving incentives for such an employee by providing for selection grade. This is quite different from promotion to a higher post and there is no question of any reservation in granting a selection grade since that will run counter to the very purpose of providing selection grade. State of Punjab v. Surjit Singh, AIR 2000 SC 3385: 1999(9) SCC 71: 2000 Lab IC 1847: 2000(7) SLR 633 (SC). Where an employee in order to be eligible to get the selection grade pay has to complete 15 years of service and he is not to be given such scale of pay before he fulfils the said eligibility criteria. It follows as a consequence that no employee can claim

46


[R.4-7

selection grade pay before completing 15 years of service on any ground including the ground that an employee junior to him has already been given such grade of pay. State of Punjab v. Kuldip Singh, AIR 2002 SC 2492: 2002(5) SCC 756: 2002(5) JT 205: 2002(4) SLR 771 (SC): 2002 Lab IC 2621: 2002(2) BLJR 1596: 2002(94) FLR 871: 2002 SCC(L&S) 814: 2002(3) SLJ 202. When appointment on ad-hoc basis was made by clearly stipulating that the ad hoc service shall not be counted towards seniority, subsequent claim of selection grade by including the service referred on ad hoc basis in the past service is not proper. Held that service of employees commenced on regular appointment after selection of UPSC and not earlier. State of Haryana v. Haryana Veterinary & A.H.T.S. Asson., AIR 2000 SC 3020: 2000(8) SCC 4: 2000(10) JT 561: 2000 Lab IC 3127: 2000(4) LLN 588: 2000(5) SLR 223 (SC). Even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the Cadre. P. Mohan Reddy v. E.A.A. Charles, AIR 2001 SC 1210: 2001(4) SCC 433: 2001(2) JT 1: 2001(1) SLR 787 (SC): 2001(2) Andh LD 57: 2001 SCC (L&S) 718. In the absence of any specific rule holding that the continuous length of service would be the basis for seniority in a particular grade, entry into the grade is the normal rule for promotion. Union of India v. C. Jayaprakasan, 2001(4) SLR 29 (SC): 2001(5) JT 557. “Promotion” thus not only covers advancement to a higher grade. In service law also the expression “promotion” has been understood in the wider sense and it has been held that “promotion can be either to a higher pay scale or to a higher post”. State of Rajasthan v. Fateh Chand Soni, 1996(1) SCC 562: 1995(9) JT 523: 1996 SCC(L&S) 340: 1996(32) ATC 488: 1996(1) SLR 1. (ii) All officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to be holding posts in the same grade, because their rank in the same department will be the same and equal to one another. Hari Nandan Sharan Bhatnagar v. S.N. Dikshit, AIR 1970 SC 40: 1970(1) SCR 421: 1969(2) SCC 245: 1969(2) SCJ 862: 1970 Lab IC 1. (iii) The word “grade” has various shades of meaning in the service jurisprudence. It is sometimes used to denote to pay scale and sometimes a cadre. A.K. Subraman v. Union of India, 1975(2) SCJ 357: AIR 1975 SC 483: 1975(2) SCR 979: 1975(1) SCC 319: 1975 Lab IC 254: 1975(1) SLR 380: 1975(1) LLJ 338. (iv) Meaning of expression “regular service in grade” — The expression “regular service of eight years in the grade” would connote rendering eight years of service in the organisation to which he has been appointed. In a somewhat similar situation, the Court considered similar expression in the case of Union of India v. K. Savitri, (1998) 2 Scale 221, where it has been held that the past service of redeployed surplus employee cannot be counted for his seniority in the new organisation and equally, the past experience also would not count as the so- called past service rendered will not be service in the grade.

R.4-7]

CLASSIFICATION

47

Union of India v. G.R.K. Sharma, AIR 1999 SC 535: 1998(6) SCC 186: 1998(7) JT 241: 1998(80) FLR 909: 1999 Lab IC 219: 1998(4) LLN 27. When right from the inception even under the Government the post of conductor and the post cleaner-cum-conductor were borne in two different grades and belong to two different cadres, by mere nomenclature, the expression “cleaner-cumconductor” cannot be held to be the same as “Conductor”. Himachal Road Transport Corporation Conductors” Union v. Himachal Road Transport Corporation, 2001(4) SLR 27 (SC): 2001(5) JT 554. 5. Post, Meaning of — A post denotes an office. A “post under the State” means a post under the istrative control of the State. State of Assam v. Nanak Chandra Dutt, AIR 1967 SC 884: 1967(1) SCR 679: 1968(1) LLJ 288: 1967(14) FLR 299: 1967(1) SCWR 228. One step lower mean the appointments on a lower post. State of Haryana v. Kanta Rani, 2000(10) JT 496: 2000(87) FLR 568: 2000(5) SLR 178 (SC). An individual applicant for any particular post does not get a right to be enforced by a mandamus unless and until he is selected in the process of selection and gets the letter of appointment. Union of India v. Tarun K. Singh, AIR 2002 SC 2196: 2001 AIRSCW 1928: 2001(2) Pat LJR 81: 2001(2) BLJ 162: 2002(2) SLR 195 (SC). Continuance or abolition of posts is within the power of the employer and any decision in that regard is not available to be interfered with by the Court unless it is held to be vitiated by mala fide or arbitrary. Notified Area Council, Pipili v. Gahar Mohammad, 2001(3) JT 576: 2002(2) SLR 199 (SC). 6. Posts and judicial review— In the matter of equation of posts or equation of pay, the same should be left to the Executive Government, who can get it determined by expert bodies like Pay Commission, and such Expert body would be the best judge to evaluate the nature of duties and responsibilities of posts and when such determination by a Commission or Committee is made the Court should normally accept it and should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. Kshetriya Kisan Gramin Bank v. D.B. Sharma, 2001 AIR SC 168: 2001(1) SCC 353: 2000(2) JT (Supp) 596: 20001 AIRSCW 279: 2001(1) Bank CLR 405: 2001 SCC (L&S) 1000: 2001(1) All WC 279: 2000(5) SLR 770 (SC) relying upon State of U.P. v. J.P. Chaurasia, 1979(1) SCC 121. In one case it was contended that if the post of a Lecturer in Gandhian Studies is given to a person who has obtained an M.A. degree in other subjects, the opportunities available to those like him, who have a specialisation in Gandhian Studies from M.A. level onwards, get reduced; and this would discourage people from taking a specialisation course in Gandhian Studies at the M.A. level. Held that this argument, however, addresses itself on the policy relating to prescribing qualifications for the various posts. Such a policy has to be formulated by the University is accordance with the norms laid down by the University Grants Commission or any other expert body that may have been specified under the relevant statues. Court cannot examine such a policy or reframe it. Punjab University v. Narinder Kumar, AIR 2000 SC 3457: 1999(10) JT 545: 1999(9) SCC 8: 2000(7) SLR 1 (SC).

48


[R.4-7

7. Permanent Post, Meaning of — Permanent post means a post carrying a definite rate of pay sanctioned without the limit of time [F.R. 9(22)]; Baleshwar Dass v. State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1981(1) SLJ 223: 1980(3) SLR 422: 1980 SCC (Lab) 531: 1981(1) SCWR 244: 1981(13) Lawyer 33: 1981(1) SCJ 421: 1980 All CJ 493. 8. Temporary Post, Meaning of — Temporary post means a post carrying a definite rate of pay sanctioned for a limited time. [F.R. 9(22)]; Baleshwar Dass v. State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1981(1) SLJ 223: 1980(3) SLR 422: 1980 SCC (Lab) 531: 1981(1) SCWR 244: 1981(13) Lawyer 33: 1981(1) SCJ 421: 1980 All CJ 493. Creation of post does involve financial implication. Hence financial health of a particular institution plays important role to which courts also keep in mind. The Court does exercise its restrain where facts are such where extent of creation of post creates financial disability. But this does not give largess to an institution to engage larger number of daily wage workers for long number of years without absorbing them or creating posts which constitutes an unfair labour practice. If finances are short engagement of such daily wage workers could only be for a short limited period if continuous work is required it could only do so by creating permanent post. If finances are not available take such work which is within financial mean. Why take advantage out of it at the cost of workers. Gujarat Agricultural University v. Rathod Labhu Bechar, AIR 2001 SC 706: 2001(3) SCC 574: 2001(2) JT 16: 2001(1) SLR 519 (SC): 2001(1) Guj LH 465: 2001 SCC (L&S) 613: 2001(1) UPLBEC 834. For termination of temporary post of a teacher see Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1997(10) JT 461: 1996(8) AD(SC) 539: 1997(1) SLR 270 (SC). 9. Temporary posts and judicial review — When the posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration come to an end on of the need for the project itself having come to an end either because the project was fulfilled or had to be abandoned wholly or partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999 SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC). When employee is appointed on a project and for the duration of that project, the question of his services continuing automatically thereafter do not arise. IRCON International Ltd. v. Daya Shankar, AIR 2002 SC 2404: 2002(9) SCC 691: 2001(10) JT 360: 2002 AIRSCW 2620: 2002 Lab IC 2319: 2002(1) LLJ 548: 2002(3) ESC 16: 2002(1) SLR 563 (SC). When the posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration come to an end on of the need for the project itself having come to an end either because the project was fulfilled or had to be abandoned wholly or partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been

R.4-7]

CLASSIFICATION

49

dislodged because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999 SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC). 10. Tenure Post, Meaning of — Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period. [F.R. 9 (30-A)]. 11. Cadre (i) Meaning of — (i) Cadre means the strength of a service or a part of a service which is sanctioned as a separate unit. [F.R. 9(4)]. Also see Rule 2.9. in the Punjab Civil Services Rules, Volume I, Chapter II in which cadre is defined, which means the strength of a service or a part of service sanctioned as a separate unit. Satwant Kochhar v. State of Punjab, 1983(1) SLJ 24. Cadre ordinarily may include permanent posts, but posts may be created of a temporary nature to perform the ordinary work for which permanent posts already exist in the cadre. Such new posts are temporary and are temporary additions to the cadre of a service. A cadre, therefore, may consist wholly of permanent posts or it may include within its fold permanent as well as temporary posts. G.R. Luthra v. (Lt. Governor of Delhi), 1973 SLJ 115: 1973(1) SLR 54; A.K. Subraman v. Union of India, 1975(2) SCJ 367: AIR 1975 Lab IC 483: 1975(1) SLR 380. (ii) Cadre — Punjab Civil Services Rules apparently envisage a cadre which is for permanent posts for the performance of the ordinary work of such posts, though temporary posts may be created as an addition to a cadre obviously to meet a contingency and for a time. Jugraj Singh v. State of Punjab, 1969 SLR 622 (FB), also see Lajpat Rai Margo v. Governor of Haryana, AIR 1971 P&H 113, wherein it was held that the word “cadre” would include both permanent and temporary posts. (iii) Cadre, Constitution of — It is open to the State Government to constitute as many cadres as they choose according to istrative convenience and expediency. Per Goswami J., in C.P. Damodaran Nayar v. State of Kerala, 1974(1) SLR 488: AIR 1974 SC 1343: 1974(2) SCR 867: 1974(4) SCC 325: 1974 Lab IC 994; Raj Nandan Prasad Singh (Dr) v. State of Bihar, 1975(1) SLR 258; Des Raj Dua v. Lt. Governor, Delhi, 1982(2) SLJ 326: 1982(2) SLR 681; Satwant Kochhar v. State of Punjab, 1983(1) SLJ 24. Government has the power to create a cadre, to split a cadre or to amalgamate to separate cadres into one. The only restriction in the matter of splitting or amalgamation of cadres is that it must be done on a rational and reasonable differentia. B.M. Shukla v. State of Bihar, 1976(1) SLR 256; State of Kerala v. M.K. Krishnan Nair, 1978(1) SLR 499: 1978(2) SCJ 531; V.R. Shambulinga v. State of Karnataka, 1980 SLJ 425:1980(2) SLR 413. 12. Cadre, Integration of — Article 16 and a fortiori also Article 14 do not forbid the creation of different cadres for Government service. And if that be so, these two Articles equally cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide whether to have several different cadres or integrated cadre in its services. Reserve Bank of India v. N.C.

50


[R.4-7

Paliwal, AIR 1976 SC 2345: 1977(1) SCR 403: 1976(4) SCC 838: 1976 SLJ 569: 1976(2) SLR 774. (i) When recruits from two sources have come into a service it is essential to fix inter se seniority for a proper integration of the cadre. Bishan Sarup Gupta v. Union of India, AIR 1974 SC 1618: 1975(1) SCR 104: 1975(3) SCC 116: 1974(2) SLR 186. Also see Mervyn Continho v. Collector of Customs, 1967(1) SCJ 574: 1966(3) SCR 600: AIR 1967 SC 52: 1967 SLR 1; S.M. Pandit v. State of Gujarat, AIR 1972 SC 252: 1972(4) SCC 778: 1972 SLR 79: 1972 Lab IC 155. (ii) While integrating two separate units into one cadre the number of promotional posts available to one unit cannot be reduced to a very low figure as compared with promotional opportunities open to the officers in the other wing. State of Mysore v. M.H. Krishna Murthy, 1974(1) SCJ 54: 1972 SLR 832: 1972(II) SCWR 591. (iii) Where directly recruited as well as promotees form one class, they are both known by the same designation, they have same scales of pay, they discharge the same functions, the posts held by them are interchangeable and there is nothing to show that the two groups are kept apart, if they are merged together in the same class, it is not competent to the Government thereafter to discriminate between the two groups in the matter of further promotion. Ramchandra Shankar Deodhar v. State of Maharashtra, 1974(1) SLR 470: AIR 1974 SC 259: 1974(2) SCR 216: 1974(1) SCC 317: 1974 Lab IC 165. (iv) The Government in exercise of its istrative authority is entitled to group cadres of service for the purpose of giving representation to the scheduled castes but this is subject to the rule that such representation should not be excessive. Director General of Posts and Telegraphs v. N. Natarajan, 1971(1) SLR 408. (v) Integration or disintegration of Cadres is an executive act. Held that direction by High Court for merger of two statutory services without even referring to the relevant Recruitment Rules is patently illegal. Association for the Officers of the W.B. Audit & s Service v. W.B. Audit & s Service Association, 1995 Supp (4) SCC 44: 1996(32) ATC 65: 1995(8) SLR 657. In New Bank of India Employees” Union v. Union of India, 1996(8) SCC 407: 1997(2) SLR 348 (SC), placement of officers of a particular bank, after its amalgamation with another bank was the subject matter of challenge and in that context, this Court had observed: “The legal position is fairly settled that no scheme of Amalgamation can be fool proof and a Court would be entitled to interfere only when it comes to the conclusion that either the scheme is arbitrary or irrational or has been framed on some extraneous consideration.” What has been observed in the case of amalgamation, would equally apply to a case of restructuring of the cadre and placement and fitment of the existing employees in the restructured cadre. K. Thimmappa v. Chairman, Central BD. Of Dirs. SBI, AIR 2001 SC 467: 2001(2) SCC 259: 2001(1) JT 347: 2001(1) SLR 625 (SC): 2001(3) All Mah LR 807: 2001(1) Bank CLR 389: 2001 SCC (L&S) 374; See also Tarsem Lal Gautam v. State Bank of Patiala, 1988(3) SCR Supp 479: AIR 1989 SC 30: 1989(1) SCC 182: 1989(5) SLR 396 (SC):

R.4-7]

CLASSIFICATION

51

1988(1) JT 184: 1989 Lab IC 1138: 1988(2) ATLT (SC) 560: 1989 SCC (Lab) 139: 1989 BankJ 67: 1989(1) Bank CLR 1: 1989(1) UPLBEC 5: 1989(1) ATR 236. Integration or disintegration of Cadres is an executive act. It was held that direction by High Court for merger of two statutory services without even referring to the relevant Recruitment Rules is patently illegal. Association for the Officers of the W.B. Audit & s Service v. W.B. Audit & s Service Association, 1995 Supp (4) SCC 44: 1996(32) ATC 65: 1995(8) SLR 657. 13. t Cadre for Union Territories — If persons employed in Union Territories are employed in connection with the affairs of the Union, their making a t cadre for such territories would obviously be within the scope of Article 309. Jaichand v. Union of India, 1969 SLR 386 Delhi (DB). 14. Ex-cadre Posts are Temporary — What are described as ex-cadre posts are essentially temporary in nature and persons who have been allowed to officiate in these posts cannot be said to have received any substantive right to hold these posts. Gurdev Singh Gill v. State of Punjab, 1968 SLR 538. 15. Ex-cadre Posts, Creation and Abolition of — (i) It is essentially a matter for the Government to decide. It is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government. The decision to abolish the post should, however, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. On abolition of post the lien of permanent hand holding the ex-cadre post will stand revived to his permanent post. State of Haryana v. Des Raj Sangar, AIR 1976 SC 1199: 1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976 Lab IC 849. (ii) A State Government cannot create ex-cadre post of All India Services. This will create parallel services of State cadre and the all India cadre having the same functions. A.I. Iyppu v. State of Tamil Nadu, 1974(1) SLR 497 (SC): AIR 1974 SC 555: 1974(2) SCR 348: 1974(4) SCC 3. (iii) The encadring of posts can be done only on certain fact situations existing Government in consultation with the State Government and on being satisfied that an enhancement in the cadre strength or encadring of certain posts is necessary in the istrative interest of the States concerned. Until such encadrement takes place, no body could stake a claim to consider their case for promotion to those ex-cadre posts. Tamil Nadu istrative Service Officers Association v. Union of India, AIR 2000 SC 1898: 2000 SC(5) 728: 2000(3) LLN 474: 2000(2) SLR 659 (SC). Article 207 does not itself provide for the procedure for abolition of a permanent post nor the mode of appointment to another post nor for the manner in which the employee has to exercise the option. It only provides for the consequence of a permanent post being abolished, the consequence being that the employee shall have the option of accepting another appointment in which event he can count his previous service for the purpose of calculating the qualifying period for pension. When there was in fact no abolition of the Government posts under Article 207, there was no question of the appellants exercising any option or surrendering their status under that Article at all. The reliance by the High Court on Article 207 to decide the appellants status was, in the

52


[R.4-7

circumstances wholly misplaced. Jawahar Lal Sazawal v. State of Jammu and Kashmir, AIR 2002 SC 1187: 2002(2) SCR 66: 2002(3) SCC 219: 2002(2) LLJ 836: 2002(2) SLJ 284: 2002(2) SCJ 188: 2002(2) SLR 412. 16. Cadre and judicial review — Cadre Rules require that the Central Government has to re-examine the strength and composition of each cadre in consultation with the State Government concerned and make such alteration therein as it deems fit. If there has been an infraction of the provisions and no explanation is forth coming from the Central Government, indicating the circumstances under which the exercise could not be undertaken, the aggrieved party may well approach a Court and a Court in its turn would be well within its jurisdiction to issue appropriate directions, depending upon the circumstances of the case. When certain power has been conferred upon the Central Government for examining the cadre strength, necessarily the same is coupled with duty to comply with the requirements of the law and any infraction on that score cannot be whittled down on the hypothesis that no vested right of any employee is being jeopardised. S. Ramanathan v. Union of India, 2001(1) SLR 616 (SC): 2001(5) JT 494. 17. Rank, Meaning of — The meaning attached to the word “rank” is that it is a class or grade of service. One rank is distinguished from another only by the classification of services or posts within which they respectively fall. S.K. Srivastava v. Union of India, 1971(2) SLR 453 (Delhi) : 1971(1) ILR (Delhi) 754 (DB). 18. Office under the State: Law Officers of High Court — In order that a post or position should be an “office” under the State, it is not necessary that the incumbent must be a servant of the State. The posts or positions of the law officers in the High Court are “offices”. State of U.P. v. B.N. Srivastava, AIR 1972 All 460. 19. Constitution of Service or Creation of a Post — No limitation can be imposed on the Government or a statutory body in its choice of constitution of service or creation of a post, to perform the duties enjoyed on Government or statutory body. Parmanand Garg v. Municipal Corporation, 1973 SLJ 293. Appointments to any public post must be absolutely transparent and fair and must be in accordance with the prescribed procedure. This is the reason why this Court has been indicating that even ad-hoc appointments should not be encouraged as far as possible and should be adhered to only when public exigencies require and appointment in accordance with the prescribed procedure would take a fairly long time and nonfilling up of the posts would be against the public interest. Dilip Kumar Tripathy v. State of Orissa, AIR 1997 SC 440: 1996(10) SCC 373: 1996(3) SCJ 239: 1996(3) SLJ 112: 1996(5) SLR 640: 1997(75) FLR 306. 20. Creation and Abolition of Posts — (i) The power to create or abolish a post is not related to the doctrine of pleasure. It is matter of governmental policy. Every Sovereign Government has this power in the interest and necessity of internal istration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and istrative necessity. The creation, the continuance and the abolition of post are all dictated by the Government in the interest of istration and general public. The State action of abolition of a civil post must be the result of bona fide exercise of inherent power of the State. Ramanatha Pillai v.

R.4-7]

CLASSIFICATION

53

State of Kerala, 1974(1) SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 515: 1973(2) SCC 650: 1974(1) SLR 225; State of Haryana v. Des Raj Sangar, AIR 1976 SC 1199: 1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976 Lab IC 849; Dr. N.C. Singhal v. Union of India, AIR 1980 SC 1255: 1980(3) SCR 44: 1980(3) SCC 29: 1980(2) SLR 118: 1980(2) SLR 118: 1980 SLJ 408; V.R. Shambhulinga v. State of Karnataka, 1980(2) SLR 413; Union of India v. T. Ramaiah, 1982(2) SLR 442. (ii) There is no fundamental right or any kind of right in the incumbents of posts under the Government that these posts must be continued for any amount of time. The Government has the discretion to create and abolish posts. The incumbents of the posts so abolished automatically go out of the service. Dr. S.C. Sharma v. Union of India, AIR 1970 Delhi 1: 1970 Lab IC 31: 1971(2) SLR 424. Even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons; be it istrative, economical or policy; decide not to fill up such posts. This principle applies with all the more force in regard to the creation of new vacancies like by encadrement of new posts; more so when such encadrement or creation of new posts is statutory controlled. Tamil Nadu istrative Service Officers Association v. Union of India, AIR 2000 SC 1898: 2000 SC(5) 728: 2000(3) LLN 474: 2000(2) SLR 659 (SC); See also State of Haryana v. Subhash Chandra Marwaha, 1974(3) SCC 220: 1973(2) SLR 137 (SC). No person should be appointed who is not found suitable for the post for which he had applied and also no person should be appointed who had not been able to secure the minimum qualification mark. Andaman & Nicobar istration v. Jolly George (Smt)., 2001(1) SLR 538 Cal (DB). (iii) When the post created for ad hoc appointment, itself stood abolished, the holder of the post ceases to continue from the date of abolition of the post. Therefore no enquiry is required to be conducted before termination on of abolition of post. Shri Maheshwari Senior Higher Secondary v. Bhikha Ram Sharma, 1996(8) SCC 22: 1996(2) JT 640: 1996(1) UJ 670: 1996(2) SLR 16(2): 1996 SCC(L&S) 815: 1996(73) FLR 1011: 1996(5) SLR 368. Though it is not for the Court to examine the wisdom of the executive with regard to the retention or abolition of a post and substitute its decision for one of the Government, even so, the order will come under judicial scrutiny if it appears that the power has not been exercised bona fide, but for some collateral or oblique purpose. The decision to abolish a post must not be a cloak or pretence to terminate the services of the person holding the post. Abolition of a post which is not by way of penalty on the holder thereof does not thus attract Article 311(2). Rabindra Nath Mukherjee v. S.R. Dass, 1979(2) SLR 807. (iv) It is essentially a matter for the Government to decide. It is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government. The decision to abolish the post should, however, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding

54


[R.4-7

that post. On abolition of post the lien of permanent hand holding the ex-cadre post will stand revived to his permanent post. State of Haryana v. Des Raj Sangar, AIR 1976 SC 1199: 1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191: 1976 SLJ 222: 1976 Lab IC 849. In modern istration, it is necessary to recognise the existence of the power with the Legislature or the Executive to create or abolish posts in the civil service of the State. Any action legislative or executive taken pursuant to that power is always subject to judicial review. The termination of service brought about by the abolition of a post effected in good faith does not attract Article 311(2) of the Constitution. K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107: 1982(2) SCC 380: 1982 Cr LJ 1396: 1982 CrLR(SC) 555: 1982 SCC(Cr) 440: 1982 CAR 161: 1982 Lab IC 876: 1982(1) SLJ 604: 1982(2) SLR 196. (v) Article 207 does not itself provide for the procedure for abolition of a permanent post nor the mode of appointment to another post nor for the manner in which the employee has to exercise the option. It only provides for the consequence of a permanent post being abolished, the consequence being that the employee shall have the option of accepting another appointment in which event he can count his previous service for the purpose of calculating the qualifying period for pension. When there was in fact no abolition of the Government posts under Article 207, there was no question of the appellants exercising any option or surrendering their status under that Article at all. The reliance by the High Court on Article 207 to decide the appellants status was, in the circumstances wholly misplaced. Jawahar Lal Sazawal v. State of Jammu and Kashmir, AIR 2002 SC 1187: 2002(2) SCR 66: 2002(3) SCC 219: 2002(2) LLJ 836: 2002(2) SLJ 284: 2002(2) SCJ 188: 2002(2) SLR 412. 21. Equation of Posts in New Department — When personnel drawn from different sources are being absorbed and integrated in a new department, it is primarily for the Government or the executive authority concerned to decide as a matter of policy how the equation of posts should be effected. The Courts will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair. R.S. Makoshi v. I.M. Menon, AIR 1982 SC 101: 1982(2) SCR 69: 1982(1) SCC 379: 1982(1) LLN 235: 1981(3) SLR 280: 1982 SCC(Lab) 77: 1981(3) SLR 280 (SC). It is the prerogative of the Government to create, reduce or abolish and to provide cadre strength and procedure for appointed on encadred posts; whether they are appointed on deputation from RAS, IAS or other source has been left to the Government under the rules. The petitioners have no right to say that the rules should be framed or constituted or modified or substituted to suit them for enhancing the chances of promotion of in-service candidates nor the State Government can be compelled to increase the cadred posts. Rajasthan Excise Service Association, Jaipur v. Mani Ram Inania, 2002(3) SLR 517 Raj. 22. Abolition of Post and Compulsory Transfer to University — Institution stood transferred to the University and posts which were in the department were abolished, which were no longer available in the department. Employees were offered employment in the University. Held, abolition of posts did have the effect of putting an end to the status and this could not be done without complying the provisions of Article

R.4-7]

CLASSIFICATION

55

311(2). Laiq Ram v. State of H.P., 1972 SLR 819; State of Himachal Pradesh v. Director of Agriculture, 1973(1) SLR 1112. 23. Abolition of post and transfer of company— Even though the workers may have interest in the manner in which the Company is conducting its business, inasmuch as its policy decision may have an impact on the workers” rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law. Even a government servant, having the protection of not only Articles 14 and 16 of the Constitution but also of Article 311, has no absolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servants can be terminated if posts are abolished. If such employee cannot make a grievance based on part III of the Constitution or Article 311 then it cannot stand to reason that like the petitioner, nongovernment employees working in a company which by reason of judicial pronouncement may be regarded as a State for the purpose of part III of the Constitution, can claim a superior or a better right than a government servant and impugn it”s change of status. In taking of a policy decision in economic matters at length, the principles of natural justice have no role to play. Even though the employees of the company may have an interest in seeing as to how the company is managed, it will not be possible to accept the contentions that in the process of disinvestment, the principles of natural justice would be applicable and that the workers, or for that matter any other party having an interest therein, would have a right of being heard. As a matter of good governance and istration whenever such policy decisions are taken, it is desirable that there should be wide range of consultations including considering any representations which may have been filed, but there is no provision in law which would require a hearing to be granted before taking a policy decision. In exercise of executive powers, policy decisions have to be taken from time to time. It will be impossible and impracticable to give a formal hearing to those who may be affected whenever a policy decision is taken. BALCO Employees” Union (Regd.) v. Union of India, 2001(10) JT 466: 2002(1) LLJ 550: 2002(1) SCJ 123: AIR 2002 SC 350: 2002(2) SCC 333. 24. Claim of Holder of Post — The providing of posts is discretionary with the department concerned and if in the opinion of the department officials the post is no more required, it can be abolished and the temporary holder of that post cannot claim that the post should be continued for his sake. Om Prakash Khatri v. Union of India, 1969 SLR 504 (Punjab); Mohinder Singh v. Union of India, AIR 1969 Delhi 170; Gian Chand Jain v. State of Haryana, 1968 SLR 752; Jagdish Prasad Tripathi v. State of U.P., 1975 Lab IC 1000: 1975 SLJ (SN) 30 All. When the post created for ad hoc appointment, itself stood abolished, the holder of the post ceases to continue from the date of abolition of the post. Therefore no enquiry is required to be conducted before termination on of abolition of post. Shri Maheshwari Senior Higher Secondary v. Bhikha Ram Sharma, 1996(8) SCC 22: 1996(2) JT 640: 1996(1) UJ 670: 1996(2) SLR 16(2): 1996 SCC(L&S) 815: 1996(73) FLR 1011: 1996(5) SLR 368.

56


[R.4-7

25. Services and Posts in Union Territory — The services and posts in a Union Territory are services and posts in connection with the affairs of the Union. Rules made by President under Article 309 are valid and operative. Jaichand v. Union of India, 1969 SLR 386 Delhi (DB). 26. Appointment made against Gazetted Post without Gazetted Status — Petitioner”s appointment was made against the post of gazetted Asstt. Engineer but in the order it was stated that though he will be considered as Asstt. Engineer but will not have the Gazetted status. Held, petitioner cannot be denied of the benefits attached to the post as Asstt. Engineer. He is entitled of all benefits attached to the said gazetted post. Nirmal Chandra Sen v. State of West Bengal, 1973 SLJ 710: 1973(1) SLR 1097. 27. Promotion with Condition to Draw Emoluments of Lower Post — Occupant of Class III post became occupant of Class II post without being entitled to the emoluments claimable in respect of that post. Part of order by which direction was given that petitioner should draw the emoluments of a lower post to be ignored as no such condition could be imposed. R.N. Rajana v. State of Mysore, 1970 SLR 107 (Mysore). 28. General Central Service is a Residuary Central Service — General Central Service is a “residuary” Central Service. Commissioner of Transport, H.P. Govt. v. Narain Das, 1974(1) SLR 386: 1974 SLJ 621. 29. Service, Member of — A person cannot be deemed to be a member of service unless he is permanently absorbed therein. State of Punjab v. Prem Prakash, AIR 1957 Punjab 219; 1957 PLR 270; Laxminarayan v. Union of India, AIR 1956 Nag 113. Permanent service and temporary service are two well recognised and distinct concepts; while a permanent servant has title to the post, a temporary servant has no right to the post. Dr. Binoy Kumar Das v. State of Orissa, 1974 SLJ 222: 1974(1) SLR 320.

APPOINTING AUTHORITY

R.8-9]

57

PART III

APPOINTING AUTHORITY R.8-9

8.

Appointment to (Class I) Group A Services and Posts — All appointments to Central Civil Service (Class I) Group A and Central Civil Posts (Class I) Group A, shall be made by the President: Provided that the President may, by a general or a special order and subject to such conditions as he may specify in such order, delegate to any other authority the power to make such appointments.

9.

Appointment to other Services and Posts — (1) All appointments to the Central Civil Services (other than the General Civil Service) Group B, Group C and Group D, shall be made by the authorities specified in this behalf in the Schedule: Provided that in respect of Group C and Group D civilian services, or civilian posts in the Defence Services appointments may be made by officers empowered in this behalf by the aforesaid authorities. (2) All appointments to Central Civil Posts, Group B, Group C and Group D, included in the General Central Service shall be made by the authorities specified in that behalf by a general or special order of the President, or, where no such order has been made, by the authorities specified in this behalf in the Schedule.


Appointing authority, definition of .................................................................................. 60

2.

Appointing authority, powers of ...................................................................................... 60

3.

Appointing authority, delegation of its powers of dismissal or removal ........................................................................................................................ 60

4.

Appointing authority when becomes defunct ................................................................... 60

5.

President has delegated his powers of appointment in certain territories ......................................................................................................................... 60

6.

Appointment or employment............................................................................................ 61

7.

Appointment and recruitment ........................................................................................... 61

8.

Appointment, rules for ..................................................................................................... 61

58


9.

[R.8-9

Appointment of persons under Supreme Court and Comptroller and Auditor-General of India ........................................................................................... 62

10. Appointment under High Court ....................................................................................... 62 11. Appointments of Officers and servants of a High Court ................................................. 64 12. “Control” of High Court……………………………………………………………. ....... 64 13. Powers and role of the High Court …………………………………. .............................. 64 14. Disciplinary powers of High Court ................................................................................. 65 15. istrative and disciplinary control of High Courts................................................... 65 16. Delegation of disciplinary power over subordinate judiciary .......................................... 66 17. Consultation with High Court ......................................................................................... 67 18. Appointment or promotion to the cadre of District Judges............................................... 67 19. Appointments to Higher Judicial Service, qualifications for ............................................ 69 20. Appointment or dismissal or removal of persons in Judicial Service is an executive function of Governor ................................................................... 69 21. Removal of judicial officer from service by High Court ................................................. 70 22. Appointment of Public Prosecutor, Government Pleaders and Law Officers................... 70 23. Articles 14, 15 and 16 form part of constitutional guarantee of equality.......................... 70 24. Equal opportunity in matters relating to employment or appointment ............................. 73 25. Reservation and Equality ................................................................................................. 73 26. Temporary or permanent employees, equality of opportunity .......................................... 74 27. Equality of treatment ........................................................................................................ 74 28. Appointment by ment ........................................................................................ 74 29. Appointment, qualifications for ...................................................................................... 74 30. Relaxing or altering qualifications ................................................................................... 75 31. No legal duty to fill up all vacancies d ............................................................... 76 32. No legal duty to fill up vacancies and not allow vacancies to be accumulated ................ 76 33. Mere selection would not give right to claim appointment .............................................. 76 34. Recruitment by open competition .................................................................................... 77 35. Appointment of any one who is more suitable ................................................................. 78 36. Recruitment ratio.............................................................................................................. 78 37. Backward class, meaning of ............................................................................................ 78 38. Reservation of posts for Backward Classes ...................................................................... 78 39. Scheduled Castes and Scheduled Tribes, meaning of....................................................... 79 40. Reservation of posts for Scheduled Castes and Scheduled Tribes .................................... 79 41. Reservation carry forward and roster ............................................................................... 81 42. Reservation of posts in Higher Services ........................................................................... 82 43. Reservation at the level of super specialisation ................................................................ 83

R.8-9]


44. Reservation for Scheduled Castes and Scheduled Tribes, standard in qualifying examination ...................................................................................................................... 83 45. Reservation of vacancies for ex-servicemen .................................................................... 83 46. Reservation of seat or posts for women............................................................................ 84 47. Reservation in Judiciary ................................................................................................... 84 48. Basis of classification for discrimination not to be arbitrary ........................................... 85 49. Reasonable classification ................................................................................................. 85 50. Reservation for children of bank employees .................................................................... 86 51. Appointment, infraction of rules ...................................................................................... 86 52. Appointment without rules ............................................................................................... 86 53. Appointment in violation of select list ............................................................................. 86 54. Appointment for political objects ..................................................................................... 87 55. Whole thing completed in haste in one day in absence of Secretary ......................................................................................................................... 87 56. Consideration of extraneous matters ................................................................................ 87 57. hip of political party in power no disqualification for appointment .................. 87 58. Political convictions or affiliations no bar for public employment ..................................................................................................................... 87 59. Termination on Police report............................................................................................ 88 60. Citizen be heard before he is debarred from appointment ............................................... 88 61. Ad-hoc appointment, what it is ........................................................................................ 88 62. Ad-hoc appointment, when can be made ......................................................................... 88 63. Ad-hoc appointment/promotion, All eligible persons be considered................................ 89 64. Ad-hoc appointment, does not vest right to hold post ...................................................... 90 65. Ad-hoc appointment, does not confer any right to claim such post or seniority on that ............................................................................................................................ 90 66. Ad-hoc appointment, place of promotees ......................................................................... 90 67. Ad-hoc appointment or promotion ................................................................................... 90 68. Ad-hoc appointment, ad-hocist has no right either of seniority or otherwise on the post . 92 69. Officiating and substantive, meaning of ........................................................................... 92 70. Appointment - Part time ................................................................................................... 93 71. Appointment, excluded post ............................................................................................. 93 72. Appointment, void............................................................................................................ 93 73. Appointment until further orders ...................................................................................... 93 74. Substantive appointment to a permanent post .................................................................. 93 75. Permanent appointment and appointment on probation distinction between.................... 94 76. Post likely to continue ...................................................................................................... 94 77. Officiating or temporary, difference in ............................................................................ 94

59

60


[R.8-9

78. Temporary or regular ....................................................................................................... 94 79. Temporary substantive appointee does not become permanent if post declaredpermanent ........................................................................................................... 94 80. Temporary post can be held substantively ....................................................................... 94 81. Disqualification on ground of sex .................................................................................... 95 82. Age-limit for appointment to a post ................................................................................. 95 83. Appointment without consultation with Public Service Commission not invalid ............ 96 84. Appointment, effect of approval by Public Service Commission ..................................... 96 85. Appointment by authority not competent to make appointment....................................... 96 86. Appointment by higher authority ..................................................................................... 96 87. Appointment on probation or on officiating basis is terminable ...................................... 97 88. Date of appointment ......................................................................................................... 97 89. Appointment with a back date .......................................................................................... 97 90. Person not eligible for consideration for appointment cannot question appointment ....... 97 91. Creation of post to accommodate a person ....................................................................... 97 92. Suitability for appointment ............................................................................................... 98 93. Oral interview test ............................................................................................................ 98 94. Verification of character and antecedents of persons selected for appointment to public posts ................................................................................................................................. 98 95. Opportunity of hearing before cancellation of appointment ............................................. 99 96. Public Employment (Requirements as to Residence) Act, 1957, Section 3 ultra vires..... 99 97. Forwarding of application to Service Commission ........................................................ 100 98. Transfer from one department to another ....................................................................... 100 99. Provisions of Rule 9(2) are not repugnant to the definition of appointing authority in Rule 2(a)......................................................................................................................... 100

1. Appointing Authority, Definition of — See Rule 2(a). 2. Appointing Authority, Powers of — See Commentary under Rule 2, Synopsis 1. 3. Appointing Authority, Delegation of its Powers of Dismissal or Removal — See Commentary under Rule 2, Synopsis. 4. Appointing Authority When Becomes Defunct — See Commentary under Rule 2, Synopsis 4. 5. President has Delegated his Powers of Appointment in Certain Territories — Under the proviso to Rule 8, the President his delegated his powers of

R.8-9]


61

all appointments in respect of Central Civil Services and posts Class I, under the following istrations:—. — Arunachal Pradesh - To the of Arunachal Pradesh. — Dadra and Nagar Haveli - To the of Dadra & Nagar Haveli. — Delhi - To the Lieutenant Governor of Delhi. — Goa, Daman & Diu - To the of Goa, Daman & Diu. — Mizoram - To the of Mizoram. Provided that no appointment to the post of Chief Secretary or Finance Secretary or Inspector-General of Police or Development Commissioner of any other post which carries an ultimate salary of Rupees Two Thousand per mensem or more shall be made except with the previous approval of the Central Government. 6. Appointment or Employment — “Appointment” and “employment” connote two different conceptions. The word “employment” covers a much larger field in matter of conditions of service, the right to promotion, etc. then the word “appointment”. S.K. Das Gupta v. O.N.G.C., AIR 1970 Guj 149; General Manager, S. Rly v. Rangachari, 1961(2) SCJ 424: AIR 1962 SC 36: 1962(2) SCR 586: 1970(2) LLJ 289; Lalit Mohan Deb v. Union of India, 1969 Lab IC 1580; M.G. Sharan v. State of Bihar, AIR 1970 Patna 25. 7. Appointment and Recruitment — (i) The term “recruitment” and “appointment” are not synonymous and connote different meaning. Basant Lal Malhotra v. State of Punjab, AIR 1969 Pun 178: 1968 SLR 883; Gurdev Singh Gill v. State of Punjab, 1968 SLR 538. (ii) The concept of recruitment is quite different from the concept of appointment. Man Mohan Kaushib v. State of Rajasthan, 1971 Lab IC 338: AIR 1971 Raj 60: 1971(2) SLR 88. 8. Appointment, Rules for — Government has the power of making appointments. Rules are framed by the Government for regulating the manner in which such appointments are to be made. The Government is not bound to frame the rules. Failure of the Government to frame rules does not take away the power of the Government to make appointments. Maria T.S. da P. Moraise Almeida v. Union of India, 1982(1) SLJ 136. See also Nelam Kandam Bhaskaran v. Union of India, 1988(4) SLR 783 (CAT Delhi); Bal Krishan Sharma v. H.P. University, 1998(1) SLR 287 HP (DB). Appointments to any public post must be absolutely transparent and fair and must be in accordance with the prescribed procedure. This is the reason why this Court has been indicating that even ad-hoc appointments should not be encouraged as far as possible and should be adhered to only when public exigencies require and appointment in accordance with the prescribed procedure would take a fairly long time and nonfilling up of the posts would be against the public interest. Dilip Kumar Tripathy v. State of Orissa, AIR 1997 SC 440: 1996(10) SCC 373: 1996(3) SCJ 239: 1996(3) SLJ 112: 1996(5) SLR 640: 1997(75) FLR 306.

62


[R.8-9

The Government service originates from a contract but on appointment the Government servant acquired a status subject to rights and obligations governed by statute or statutory rules. Therefore the amendment in the rules affect not only the persons who service after amendment of Rules but all the persons in service at the time of amendment. Government of Andhra Pradesh v. Syed Yousuddin Ahmed, AIR 1997 SC 3439:1997(7) SCC 24: 1997(7) JT 395: 1997(5) SLR 219: 1998(1) SLJ 91: 1997 Lab IC 3361. 9. Appointment of Persons under Supreme Court and Comptroller and Auditor-General of India — Articles 146 and 148(5)(6) of the Constitution which deal with the officers and service of persons under the Supreme Court and Comptroller and Auditor-General of India provide as under:—. Article 146. Officers and servants and the expenses of the Supreme Court — (1) Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or Officer of the Court as he may direct:. Provided that the President may by rule require that in such cases as may be specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court, save after consultation with the Union Public Service Commission. (2) Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose:. Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President. (3) The istrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of India, and any fees or other monies taken by the Court shall form part of that Fund. Article 148. Comptroller and Auditor-General of India — (5) Subject to the provisions of this Constitution and of any law made Parliament, the conditions of service of persons serving in the Indian Audit and s Department and the istrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General. (6) The istrative expenses of the office of the Comptroller and AuditorGeneral, including al salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India. 10. Appointment under High Court — Articles 229, 233, 234 and 235 which provide for the appointments of officers and servants of a High Court, the district judges, the persons other than district judges to the judicial service and control over subordinate courts are:—

R.8-9]


63

Article 229. Officers and servants and the expenses of High Courts — (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other judge or officer of the court as he may direct:. Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose; Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. (3) The istrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other monies taken by the Court shall form part of that Fund. Subordinate Courts Article 233. Appointment of District Judges — (1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. Article 234. Recruitment of persons other than District Judges to the Judicial Service — Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235. Control over subordinate Courts — The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

64


[R.8-9

It is now settled beyond dispute that control envisaged in Article 235 includes both disciplinary as also judicial — Rohas Behari Rajguru v. State of Orissa, 1981(3) SLR 78. Scope of Article 235 based on decisions of Supreme Court has been summarised in P. Kumara Menon v. State of Kerala, 1982(1) SLR 104: 1982(1) SLJ 91. 11. Appointments of Officers and Servants of a High Court — The unequivocal purpose and obvious intention of the framers of Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court it is the Chief Justice or his nominee who is to be supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. M. Gurumorrthy v. ant-General, Assam, 1971(1) SCWR 817: AIR 1971 SC 1850: 1971 Supp SCR 420: 1971(2) SCC 137: 1971(2) SLR 434. See also Subhash Sharma v. Union of India, AIR 1990 SC 631: 1990(2) Supp SCR 433: 1991(1) SCC Supp 573: 1990(4) JT 245: 1990(6) SLR (SC) 36. 12. “Control” of High Court — The word “control” used in Article 235 read with Articles 233 and 234 would indicate that although the Appointing Authority of the District Judge and officers other than District Judges is the Governor of the State, the words “control over district courts and courts subordinate thereto”, which are words of wide connotation, vest in the High Court other facets of service of those officers, namely, their confirmation on completion of the period of probation, their postings, transfers and disciplinary matters including power to recommend major punishments. Thus, the “control” vested in the High Court is complete control subject only to the powers of the Governor in the matter of appointment, initial posting and promotion to the posts of District Judges. For imposing major punishment, including the punishment of dismissal, removal or reduction in rank, the High Court can, in exercise of its powers under Article 235 of the Constitution, hold disciplinary proceedings and recommend the punishment to be imposed on the delinquent to the Governor who alone would be competent to impose such punishment having regard to the provisions of Articles 233 and 234. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39. 13. Powers and role of the High Court — The Indian Constitution provides for an independent judiciary in every State by making a provisions for a High Court being constituted for each State. The constitution has conferred very wide powers and extensive jurisdiction on each High Court, including the power of superintendence over all the courts and tribunals in the territory over which it has jurisdiction. Undoubtedly, one of the most important wings of the judiciary comprises of the subordinate courts as it is in these courts that the judiciary comes in close with the people. In order to secure the independence of the subordinate judiciary from the Executive, Articles 233 to 237 have been placed in the Constitution. Article 233 deals with the appointment of District Judges and provides that appointments, posting and promotions of District Judges in any State shall be made by the Governor in consultation with the High Court, exercising jurisdiction in relation to such State. The word “District Judge” has been defined in Article 236(a). The expression “judicial service” has been defined in clause

R.8-9]


65

(b) of Article 236. Article 237 gives power to the Governor to apply, by public Notification, the provisions of this Chapter and the Rules made there under to any class or classes of Magistrates. Once such a Notification is issued, the provisions of Articles 234, 235 and 236 will become applicable to those magistrates and they would become of the “judicial service” under the control of the High Court. In order to ensure their independence, the control over the subordinate courts has been vested in the High Court under Article 235. From the scheme of the Constitution, it will be seen that though the officers of subordinate judiciary are basically and essentially Government Servants, their whole service is placed under the control of the High Court and the Governor cannot make any appointment or take any disciplinary action including action for removal or compulsory retirement unless the High Court is “CONSULTED” as required by the constitutional impact of both the Articles 233 and 234 and the “control” of the High Court indicated in Article 235. Madan Mohan Choudhary v. State of Bihar, AIR 1999 SC 1018: 1999(3) SCC 396: 1999(1) SLR 718: 1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2) LLN 4: 1999(81) FLR 712: 2000(1) SLJ 87. 14. Disciplinary powers of High Court — The High Court are vested with the disciplinary control as well as istrative control over the of the Judicial Service exclusively, but that does not mean that they can also orders of dismissal, removal, reduction in rank or termination from service while exercising istrative and disciplinary control over the of Judicial Service. Undoubtedly, the High Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of dismissal, removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be ed only by the State Governor on the recommendation of the High Court. It is well settled again by a catena of decisions of Supreme Court that the recommendation of the High Court is binding on the State Government/Governor. Therefore while the High Court retains the power of disciplinary control over the subordinate judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiries and impose punishment on them but when it comes to the question of dismissal, removal, reduction in rank or termination of the services of the judicial officer, on any count whatsoever, the High Court becomes only the recommending authority and cannot itself such an order. Registrar (istration), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999 SC 3265: 1999(7) SCC 725: 1999 Lab IC 3243: 1999(4) LLN 1202: 1999(83) FLR 427: 2000(96) FJR 363: 1999(5) SLR 191: 2000(1) SLJ 226 relying upon Shyam Lal v. State of U.P., (1955) 1 SCR 26 and High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal , (1998) 3 SCC 72; Therefore an order terminating the service of a judicial officer should be treated as a recommendation to Governor. T. Lakshmi Narsimha Chari v. High Court of A.P., 1996 (5) SCC 90. 15. istrative and disciplinary control of High Courts — It is needed that periodical inspections of subordinate courts to be carried out regularly. The wellrecognised and accepted practice of making annual entries in the confidential records of subordinate officials by superiors has a public policy and purposive requirement. It is one of the recognised and time-tested modes of exercising istrative and disciplinary control by a superior authority over its subordinates. They very power to

66


[R.8-9

make such entries as have potential for shaping the future career of a subordinate officer casts an obligation on the High Courts to keep a watch and vigil over the performance of the of subordinate judiciary. An assessment of quality and quantity of performance and progress of the judicial officers should be an ongoing process continued round the year and then to make a record in an objective manner of the impressions formulated by such assessment. An annual entry is not an instrument to be wielded like a teachers cane or to be cracked like a whip. The High Court has to act and guide the subordinate officers like a guardian or elder in the judicial family. The entry in the confidential rolls should not be reflection of personal whims, fancies or prejudices, likes or dislikes of a superior. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officer to secure an improvement in his performance where need be; to onish him with the object of removing for future, the shortcoming found; and expressing an appreciation with an idea of toning up and maintaining the imitable qualities by affectionately patting on the back of meritorious and deserving. An entry consisting of a few words, or a sentence or two, is supposed to reflect the sum total of the impressions formulated by the inspecting judge who had the opportunity of forming those impressions in his mind by having an opportunity of watching the judicial officer round the period under review. In the very nature of things, the process is complex and the formulation of impressions is a result of multiple factors simultaneously playing in the mind. The perceptions may differ. In the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in confidential rolls to judicial review. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls. Rules where they are, else the executive instructions, require that entries in confidential records are made within a specified time soon following the end of the period under review, generally within three months from the end of the year. Delay in carrying out inspections or making entries frustrates the very purpose sought to be achieved. The mental impressions may fade away or get embellished, not to be restored. Events of succeeding year may cast their shadow on assessment of previous years. Recording of entries for more than one period in one go must be avoided as it is pregnant with the risk of causing such harm as may never be remedied or granting undeserved benefits. Thus the need of vigilantly carrying out the annual inspections at regular intervals and making timely entries in the service records followed by prompt communications to the judicial officers so as to afford them a right of representation in the event of the entry being adverse, emphasised. Bishwanath Prasad Singh v. State of Bihar, 2001(2) SCC 305: 2001(1) SLT 183: 2001(1) SCJ 343. 16. Delegation of disciplinary power over subordinate judiciary — The control of the subordinate judiciary under Article 235 is vested in the High Court. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court. The Chief Justice of the High Court is first among the judges of the High Court. The action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of istrative business in the Court, the Full Court of the Judges of the High Court generally es a resolution authorising the Chief Justice to constitute various committees including the committee to deal with

R.8-9]


67

disciplinary matters pertaining to the subordinate judiciary or the ministerial staff working therein. Article 235, therefore, relates to the power of taking a decision by the High Court against a member of the subordinate judiciary. Such a decision either to hold enquiry into conduct of a judicial officer, subordinate or higher judiciary, or to have the enquiry conducted through a District or Additional District Judge etc. and to consider the report of the Enquiry Officer for taking further action is of the High Court. Equally, the decision to consider the report of the enquiry officer and to take follow up action and to make appropriate recommendation to the Disciplinary Committee or to the Governor, is entirely of the High Court which acts through the Committee of the Judges authorised by the Full Court. Once a resolution is ed by the Full Court of the High Court, there is no further necessity to refer the matter again to the Full Court while taking such procedural steps relating to control of the subordinate judiciary. High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631: 1997(6) SCC 339: 1997(2) LLN 470: 1997(76) FLR 659: 1997(2) SCJ 320: 1997(2) UJ 152: 1997(4) SLR 321. 17. Consultation with High Court — The word “consult” in its ordinary meaning means “to ask advice” or “to take counsel”. The Governor is thus a “consulter” and the High Court is the “consultee” which is treated as an expert body in all matters of service including appointments, disciplinary action, compulsory retirement etc. relating to State Judicial Services. Since the Governor cannot act on his own unless he has consulted the High Court, the Constitution has conferred upon the High Court a sacred and noble duty to give the best of advice or opinion to the Governor; an advice tendered after due deliberation and after taking into consideration all the relevant material and record relating to the problem on which consultation is made or advice is sought by the Governor. It is, therefore, essentially a matter of trust and confidence between the Governor and the High Court. The High Court cannot act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of that trust. If the advice is not able by any material on record and is arbitrary in character it may not have any binding value. Madan Mohan Choudhary v. State of Bihar, AIR 1999 SC 1018: 1999(3) SCC 396: 1999(1) SLR 718: 1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2) LLN 4: 1999(81) FLR 712: 2000(1) SLJ 87. 18. Appointment or Promotion to the Cadre of District Judges — (i) No doubt, the appointment of a person to be a District Judge vests with the Governor, but he cannot make the appointment on his own initiative and must do so in consultation with the High Court. So far as promotion to the cadre of District Judge is concerned, the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. Chandramouleshwar Prasad v. Patna High Court, 1971(1) SCJ 7: 1969(II) SCWR 667: AIR 1970 SC 370: 1970(2) SCR 666: 1969(3) SCC 56: 1970 SLR (SC) 825; Madan Mohan Prasad v. Govt. of Bihar, AIR 1970 Patna 432: 1971(1) SLR 665 (FB); Hari Dutt Kainthia v. State of H.P., AIR 1980 SC 1426: 1980(3) SCC 189: 1980 Lab IC 825: 1980 SLJ 646: 1980(2) SLR 154; M.M. Gupta v. State of J&K, AIR 1982 SC 1579: 1984(1) SCC 593: 1982(3) SCC 412: 1982 Lab IC 1970: 1983(1) SLR 160: 1983(1) SLJ 82.

68


[R.8-9

(ii) A candidate for direct recruitment from the bar does not become eligible for appointment as District Judge without the recommendations of the High Court. [Article 233(2) of the Constitution]. (iii) In A. Pandurangam Rao v. State of A.P., AIR 1975 SC 1922: 1976(1) SCR 620: 1975(4) SCC 709: 1975 Lab IC 1452: 1975(2) SLR 582: 1976 SLJ 3, it was held that Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Court”s recommendations in regard to certain persons. Even if the High Court did not agree, the final authority was the Government in the matter of appointment and for good reasons it could reject the High Court”s recommendations. In Mani Subrat Jain v. State of Haryana, 1977(1) SCJ 455: AIR 1977 SC 876: 1977(2) SCR 626: 1977(2) SCC 148: 1977 Lab IC 533: 1977 SLJ 144: 1977(1) SLR 272, it has been held that if the names are recommended by High Court, it is not obligatory on the Governor to accept the recommendations. (iv) District Judge includes Additional District Judge and Additional Sessions Judge — Under Article 233 appointment as well as promotion of persons to be District Judge is a matter for the Governor in consultation with the High Court and the expression “District Judge” include an additional District Judge and an additional Sessions Judge. District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary. The Article is intended to take care of both. State of Assam v. Kuseswar Saikia, 1970(1) SCWR 275: AIR 1970 SC 1616: 1970(2) SCR 928: 1969(3) SCC 505: 1970 Lab IC 1336: 1969 SLR 883; see also Chandra Mohan v. State of U.P., 1967(2) SCJ 717: 1967(1) SCWR 153: AIR 1966 SC 1987: 1967(1) SCR 77: 1967(1) LLJ 412; Prem Nath v. State of Rajasthan, 1967(II) SCWR 543: AIR 1967 SC 1599: 1967(2) SCR 186: 1967 CrLJ 1569: 1967 SLR 872. (v) Appointment to the post of District Judge must be made by selection of the most meritorious officer upon an appraisal of the comparative merit of eligible Subordinate Judge. The principle of seniority-cum-fitness would be a valid principle. Hari Datta Kainthala v. State of H.P., 1974 SLJ 525: 1974(1) SLR 208 (SC) (FB). Supreme Court on appeal in above case held that if there was no rule and the High Court proceeded to adopt merit-cum-seniority or seniority-cum-fitness as a criterion for recommending promotions from the subordinate judges to the post of District Judge, neither of which appears to violate either Article 233 or Article 16 or any other constitutional mandate or the statutory rule, it would be futile to proceed to examine what ought to be or possible criterion should really govern the decision for recommending persons from subordinate judicial service for promotion to the District Judge. Hari Datta Kainthala v. State of H.P., 1974 SLJ 525: 1974(1) SLR 208 (SC) (FB). (vi) Promotee Officer: Reversion — Under Article 235 of the Constitution, the High Court is competent to revert a person promoted on officiating basis as District Judge by the State Government, to his substantive post of Additional District & Sessions Judge. Mahendra Prasad Sinha v. High Court, Patna, 1983(1) SLR 778 Pat. (vii) Appointment of Full Court — In the Kerala High Court, a Committee of senior most three Judges was constituted to prepare a list of suitable persons. Opinion of the Committee was placed before the Full Court and there was t deliberation by

R.8-9]


69

the Full Court. It was held that there was no abdication by the Full Court. Mary Teresa Dias v. Chief Justice, 1986(1) SLR 380 Ker (DB). (viii) High Court”s Recommendation — It is only the High Court which can make a recommendation whether a particular officer of the Judiciary is competent and fit to be promoted as Judge, City Civil Court. If the State Government rejects the recommendation without mature deliberation, article 233 and 235 of the constitution are attracted. N.J Mankad v. State, 1985(2) SLR 306 Guj. (ix) Member of High Court Staff — Article 233(2) of the Constitution lays down qualifications for appointment as District Judges. The candidates must be practising advocates. A member of the High Court staff is not eligible for the post. S.G. Deshpande v. State of Maharashtra, 1985(3) SLR 264 Bom. (x) Promotion of Subordinate Judges — For promoting Subordinate Judges to the post of District and Sessions Judge, Grade II rules were silent as to the method to be adopted. The High Court adopted the criterion of the seniority-cum-fitness. It was held that this was proper. T.H.B. Chalapathi v. High Court, A.P., 1986(2) SLR 218, 227, 228 para 11 ( AP) (DB) 19. Appointments to Higher Judicial Service, Qualifications for — Article 233(2) laid down only the minimum qualifications and it was open to the rule making authority to prescribe more stringent qualifications for the recruitment of the persons to the Higher Judicial Service only. Daulat Raj Singhvi v. State of Rajasthan, 1970 Raj LW 214; Pandurang Rao v. Andhra Pradesh Public Service Commission, AIR 1963 SC 268: 1963(1) SCR 707; Muni Lal Garg v. State of Rajasthan, AIR 1970 Raj 164. See also Surinder Mohan Sharma v. State of Haryana, 1988(5) SLR 94 P&H; S.N. Singh v. High Court, Allahabad, 1985(2) SLR 819 (SC): 1984(2) SCJ 287; Orissa Judicial Services Association v. State of Orissa, AIR 1990 SC 726: 1990(3) Supp SCR 348: 1992(1) SCC 187: 1990(4) JT 726: 1991(2) ATR 684: 1992(19) ATC 229: 1991(1) SLR 542: 1991 Lab IC 522; High Court of Judicature at Allahabad v. Amod Kumar Srivastava, 1993(3) SLR 308 All (FB); K.Arumgam v. State of Tamil Nadu, 1998(1) SLR 260 Mad (DB). 20. Appointment or Dismissal or Removal of Persons in Judicial Service is an Executive Function of Governor — Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal functions but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution. Shamsher Singh v. State of Punjab, 1974(2) SLR 701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831. It will be in the best interest of a high and healthy tradition for the Governor to ordinarily accept the recommendations of a High Court in a disciplinary matter concerning judicial officers Baldev Raj Guliani v. P&H High Court, 1976 SLJ 601: 1976(2) SLR 758: AIR 1976 SC 2490: 1977(1) SCR 524: 1976(4) SCC 201; State of Haryana v. Inder Prakash, AIR 1976 SC 1841: 1976 Supp SCR 603: 1976(2) SCC 977: 1976(2) SLR 223: 1976 SLJ 497; Chief Justice, A.P., High Court v. L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1979(1) SLR 1; P. Kumara Menon v. State of Kerala 1982(1) SLR 104: 1982(1) SLJ 91.

70


[R.8-9

See also State of U.P. v. Rafiquiddin, 1988(1) SCR 794: AIR 1988 SC 162: 1987 Supp SCC 401: 1987(4) JT 251: 1988(1) SLR 491: 1988 Lab IC 344: 1987(5) ATC 257: 1988 SCC (Lab) 183: 1988(2) SCJ 170. 21. Removal of judicial officer from service by High Court— Order of removal ed by the High Court itself and not in the name of Governor. Held that though the recommendation of the High Court for removal from service is binding on the Governor, the High Court cannot by itself the order of removal from service. T. Lakshmi Narasimha Chari v. High Court of Andhra Pradesh, AIR 1996 SC 2067: 1996(5) SCC 90: 1996(73) FLR 1618: 1996(2) UJ 300: 1996 SCC(L&S) 1133: 1996(2) SCJ 524: 1996(2) SLJ 40: 1996(4) SLR 1: 1996(2) LLN 479. 22. Appointment of Public Prosecutors, Government Pleaders and Law Officers — (i) The appointment of Public Prosecutor is an executive or istrative act of the Government but if it contravenes the law, Courts can intervene. The appointment has to be made in accordance with the rule and the procedure prescribed. A. Mohambaram v. M.A. Jayavelu, AIR 1970 Mad 63. (ii) Appointment by selection or by a process otherwise than calling for applications does not necessarily offend Article 16. Baby George v. State of Kerala, 1974 SLJ 548; Sudhansu Sekhar Misra v. State, 1976(1) SLR 477: 1976 Lab IC 821. (iii) The making of an application by an Advocate for appointment of Law Officers whether in response to an ment or notice or otherwise would amount to soliciting work and would be highly unprofessional and unethical. Any advocate who applies for appointment would be committing professional misconduct. State of U.P. v. Bholanath Srivastava, 1972 SLR 477: 1972 ALJ 457. 23. Articles 14, 15 and 16 Form a Part of Constitutional Guarantee of Equality in Matters Relating to Employment or Appointment under the State — Article 14, 15 and 16 of the Constitution provide:—. Article 14. Equality before law — The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15. Prohibition of discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth. — (1) The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race caste, sex, place of birth or any of them, be subject to any disability, liability restrictions or condition with regard to—. (a) access to shops, public restaurants, hotels and places of public entertainment; or. (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public. (3) Nothing in this Article shall prevent the State from making any special provision for women and children.

R.8-9]


71

(4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Scheduled Tribes]. Article 16. Equality of opportunity in matter of public employment — (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this Article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office under the Government of or any local or that authority within a state or Union Territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment. (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4-A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the service under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the service under the State]. (4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.]. (5) Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. The right to equality is guaranteed by Article 14 and 16 of our Constitution. Article 14 is an injunction to both the legislative and the executive organs of the State and other subordinate authorities not to deny to any person equality before the law or equal protection to the laws. Sub-Article (1) of Article 16 guarantees to every citizen equality of opportunity in matters of Public employment. The equality of opportunity in the matters of services takes within its fold all stages of service from initial appointment to its termination including promotion but it does not prohibit the prescription of reasonable rules for selection and promotion, applicable to all

72


[R.8-9

of a classified group. Article 16 by clause (2) prohibits discrimination on the ground of religion, race, caste, sex, descent, place of birth, residence of any of them. Clause (4) permits an exception to be made in the matter of reservation in favour of backward classes of citizens. Article 14, 15 and 16 form part of the same constitutional code of guarantee and supplement each other. The doctrine of equality before law is a necessary corollary to concept of rule of law accepted by the Constitution. It is well settled principle that if a person complains of unequal treatment, the burden squarely lies on that person to place before the court sufficient materials from which it can be inferred that there is unequal treatment. Where, however, the necessary materials have not been placed to show how there has been an unequal, the plea of provisions being violative of Article 14 cannot be entertained. The concept of equality before law does not involve the idea of absolute equality amongst all which may be a physical impossibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals, the law should be equal and should be equally istered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as though they were the same. It is true that Article 14 ens that the people similarly situated should be treated similarly but amount of dissimilarity would make the people disentitled to be treated equally is rather a vexed question. A Legislature, which has to deal with diverse problems arising out of an infinite variety of human relations must be necessity, have the power of making special laws, to attain objects; and for that purpose it must have large powers of selection or classification of persons and things which such laws are to operate. Mere differentiation or inequality of treatment does not “per se” amount to discrimination within the inhibition of the equal protection clause. The state has always the power to make classification on a basis of rational distinctions relevant to the particular subject to be dealt with. In order to the test of permissible classification, two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguished persons or things that are grouped together from others who are left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. What a law is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and the object of the Act, the Court has to apply a dual test in examining the validity, the test being, whether the classification is rational and based upon an intelligible differentia which distinguished persons or things that are grouped together from others that are left out of the group, and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. In order that a law may be struck down under this Article, the inequality must arise under the same piece of legislation or under the same set of laws which have to be treated as one enactment. Inequality resulting from two different enactments made by two different authorities in relation to the same subject will not be liable to attack under Article 14. Ashutosh Gupta v. State of Rajasthan, 2002(3) JT 219: 2002(3) SLR 18 (SC).

R.8-9]


73

Concept of equality has an inherent limitation arising from very nature of the guarantee under the Constitution and those who are similarly circumstanced are entitled to equal treatment. If there is a rational classification consistent with the purpose for which such classification was made, equality is not violated. Article 16 of the Constitution does not bar a reasonable classification of employees or reasonable tests for selection. Equality of opportunity of employment means equality as between of the same class of employees and not equality between of separate independent class. Union of India v. IM Havildar/Cerl SC Bagari (No. 664950), AIR 1999 SC 1412: 1999 JT(3) 124: 1999 Lab IC 1561: 1999(2) SLR 775 (SC). 24. Equal Opportunity in Matters Relating to Employment or Appointment— Article 16 of the Constitution lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The right is not only to make an application for the post but to be considered on merit for the post for which application has been made. Krishna Chandra Nayer v. Chairman, Central Tractor Organisation, 1962(1) SCJ 215: AIR 1962 SC 602: 1962(3) SCR 187: 1963(1) LLJ 661; Dr. Swayamber Prasad Sudrama v. State of Rajasthan, AIR 1972 Rajasthan 69. If any appointment is intended to be made on a regular basis the executive will have to lay down a procedure for such appointment so that all persons desirous of getting themselves appointed to such posts, get an equal chance of being considered. Venkat Swami v. Govt. of A.P., 1972 SLR 249. The equality of opportunity is not confined only to the initial appointments but includes also the and conditions of services as well as promotion to the selection posts. The equality of opportunity takes within its folds all stages of services from initial appointment to its termination to the payment of gratuity and pension. Ganga Ram v. Union of India, 1970(2) SCJ 584: 1970(II) SCWR 221: AIR 1970 SC 2178: 1970(3) SCR 481: 1970(1) SCC 377: 1970 SLR 755; Ram Rattan Bakshi v. State of Punjab, AIR 1968 Punjab 436; Harikishan Lal Chopra v. State of Punjab, 1974 SLJ 1; Mohammad Shujat Ali v. Union of India, AIR 1974 SC 1631: 1975(1) SCR 449: 1975(3) SCC 76: 1974 (2) SLR 508: 1974 Lab IC 1103. The rule of weight-age which in particular circumstances is unreasonable and arbitrary cannot be sustained. State of Maharashtra v. Raj Kumar, 1982(2) SLJ 549: 1982 Lab IC 1597: AIR 1982 SC 1301: 1982(3) SCC 313. 25. Reservation and Equality — V.R. Krishna Iyer, J. speaking for the Supreme Court in Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India, 1980(3) SLR 645 said, “Centuries of calculated oppression and submission ission reduced a considerable section of our community to a life of serfdom. It would be well neigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs.” Reservation in promotions was upheld in General Manager, Southern Railway v. Rangachari, 1961(2) SCJ 424: 1962(2) SCR 586: AIR 1962 SC 36: 1970(2) LLJ 289; see also State of Kerala v. N.M. Thomas, AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310: 1976 Lab IC 395: 1976(2) SLR 805.

74


[R.8-9

26. Temporary or Permanent Employees, Equality of Opportunity — It is settled that Article 16 of the Constitution which ordains equality of opportunity for all citizens in matters relating to employment or appointment to any office in the State applies equally to temporary or permanent employees. Abdul Wahid Khan v. Hon”ble Chief Justice, 1969 SLR 726. See also P.K. Mary v. Director, I.C.A.R., 1990(6) SLR 322 (CAT Ernakulam); Harinder Sharma v. State of Punjab, 1998(1) SLR 361 P&H (DB). 27. Equality of Treatment — It is now well settled that employees under Government are entitled to equality of treatment both at the time of appointment and at all material stages during continuation of their service. Anil Chandra v. State of Orissa, AIR 1970 Ori 19; Ganga Ram v. Union of India, 1970(2) SCJ 584: 1970(1) SCC 377: 1970(II) SCWR 221: AIR 1970 SC 2178. The doctrine of equality before law and equal protection of laws and equality of opportunity in the matter of employment and promotion enshrined in Articles 14 and 16 of the Constitution which is intended to advance justice by avoiding discrimination is attracted only when equals are treated as unequals or where unequals are treated as equals. Equality is for equals, that is to say, those who are similarly circumstanced are entitled to an equal treatment. Ramesh Prasad Singh v. State of Bihar, AIR 1978 SC 327: 1978(1) SCR 787: 1978(1) SCC 37: 1978 Lab IC 173: 1978(1) SLR 268: 1978 SLJ 1; Air India v. Nargesh Meerza, 1982(1) SLR 117 (SC). 28. Appointment by ment — If the government s the appointments and the conditions of service to the appointments and makes a selection after ment there would be no breach of Article 15 or Article 16 because every body who is eligible in view of the conditions of service would be entitled to be considered by the State. B.N. Nagarajan v. State of Mysore, 1967(2) SCJ 664: AIR 1966 SC 1942: 1966(2) SCR 682; see also Dr. Amarjit Singh Ahluwalia v. State of Punjab, AIR 1975 SC 984: 1975(3) SCR 82: 1975(3) SCC 503: 1975 SLJ 220: 1975 SLR 171: 1975 Lab IC 613. See also Dr. Arvind Kumar v. State of U.P., 1988(1) SLR 701 (All); Raj Kumar v. Shakti Raj, AIR 1997 SC 2110: 1997(2) JT 688: 1997 Lab IC 2088: 1997(9) SCC 527: 1997(2) SLR 130 (SC); Arun Tewari v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331: 1998(2) SCC 332: 1998(1) SLR 219 (SC); Jasbir Singh v. State of Punjab, 1998(1) SLR 312; Pushpa Sharma v. State of Haryana, 1998(1) SLR 558 (P&H) (DB). 29. Appointment, Qualification for — (i) It is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service and it is open to the authority to lay down such pre-requisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. Like all other employers, Government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government. Banarsidas v. State of U.P., 1956 SCR 357: 1956 SCJ 529: AIR 1956 SC 520; Mohinder Singh v. State of Haryana, 1982(1) SLR 884. (ii) In the absence of rules, qualifications for a post can validly be laid down in the self same executive order creating the service or post and filling it up according to

R.8-9]


75

these qualifications. Ramesh Prasad Singh v. State of Bihar, AIR 1978 SC 327: 1978(1) SCR 787: 1978(1) SCC 37: 1978(1) SLR 268: 1978 SLJ 1: 1978 Lab IC 173. (iii) Eligibility for being appointed depends on the question where the candidate possesses the minimum qualification prescribed for the post. If in addition to the minimum qualification prescribed for the post, the candidate possesses any further qualification, he will not be ineligible for the post. Karnataka Public Service Commission v. N.C. Hugar, 1981(1) SLR 469 (FB). (iv) Academic merit cannot be judged to be the sole test for appointment. M.A. Jauhri v. State of J&K, 1971(1) SLR 489. See also Dhankaur Hooda v. State of Haryana, 1989(2) SLR 501 P&H; S.S.R.N. Sarma v. Registrar (n), High Court of A.P., Hyderabad, 1997(4) SLR 642 (AP) (FB); Sudeesh T. Balaraman v. State, 1997(4) SLR 431 Ker. 30. Relaxing or Altering Qualifications — (i) In the absence of any obligations, statutory or otherwise it is open for the Government to alter the qualifications already specified, and for the Public Service Commission to select candidates on the basis of altered qualifications. Ahmad Thonnon Thodi v. State of Kerala, 1970 SLR 34. (ii) It is true that no relaxation in qualifications can be made when an ment has duly been issued inviting applications and persons possessing the qualifications d as prescribed are available and have submitted their applications. If a relaxation has to be made, there is a duty cast to re- the post. Where the ment itself contained a relaxation clause, relaxation was upheld as there was no statute or regulation having the force of law by which qualifications were prescribed for the post and it was the exclusive power of istration to prescribed the qualifications. Swaran Lata v. Union of India, 1979(2) SCR 953: 1979 SLJ 170: 1979(1) SLR 710 (SC). (iii) It is open to the Government to change conditions on which applications were invited in the ment and offer appointments on new conditions. O.P. Yuggal v. Secretary to Government of Punjab, 1972 SLR 444; H.C. Widhani v. Union of India, 1969 SLR 812. The dictation of Government to the authorities concerned for giving preference to persons having undergone vasectomy operation was violative of Article 16. Abhai Kumar Singh v. Director School Education, 1979(2) SLR 97. (iv) ment calling applications for posts mentioned qualifications and other requirements. No mention in ment that the qualifications and conditions can be relaxed. Selection of candidates in relaxation of qualifications and other requirements struck down as the selection was detriment of constitutional right of other citizens. M.S.E.B. Engineer”s Association v. Maharashtra State Electricity Board, AIR 1968 Bombay 65: 1968 SLR 273; Atam Prakash Mohan v. Kurukshetra University, 1970 SLR 16; Kuldip Chand v. Union of India, 1970 SLR 406; Kuldip Singh Gill v. State of Punjab, 1972 SLR 706; Harnam Singh v. State of H.P., 1974(2) SLR 350; Mohammed Maqbool Pandit v. Chairman, District Recruitment Board, 1981(1) SLR 490.

76


[R.8-9

(v) It is a well established law that qualifications for a particular post can be a rational differentia within the meaning of Article 16. It is equally clear that when a qualification has been prescribed for a post, that cannot be obliterated by posting those who do not have that qualification as against those who have that qualification. Subhash Chand Jain v. Delhi Electric Supply Undertaking, AIR 1981 SC 75: 1979(3) SCC 786: 1980 Lab IC 1189: 1981(3) SLR 212: 1979(1) SLR 306: 1979 SCC (Lab) 345: 1981(1) SCJ 305. (vi) But there can be no relaxation of the basic or fundamental rules of recruitment. Suraj Parkash Gupta v. State of Jammu & Kashmir, AIR 2000 SC 2386: 2000(7) SCC 561: 2000(5) JT 413: 2000 Lab IC 2588: 2000(4) SLR 486. 31. No Legal Duty to fill-up all vacancies d — ment was published to hold an examination for recruitment of candidates for 15 vacancies. State Government made seven appointments in serial order of the list according to merit of those whose secured not less than 55% of marks. Held, there is no legal duty on the State to fill up all the 15 posts and those who got less than 55% have no right to claim that selections be made of all those who obtained less than minimum fixed by Government. State of Haryana v. Subhash Chander Marwaha, 1973(1) SCWR 947: AIR 1973 SC 2216: 1974(1) SCR 165: 1974(3) SCC 220: 1973(2) SLR 137: 1973 SLJ 795; Balak Ram v. State of H.P., 1976 Lab IC 1052: 1976(1) SLR 520; Davinder Singh v. State of Punjab, 1982(2) SLR 249; See also Arvind Kumar v. State of U.P., 1988(1) SLR 701 (All); Arun Tewari v. Zila Mansavi Sikshak Sangh, AIR 1996 SC 2107: 1996(8) SCC 441: 1996(4) JT 738: 1996(4) AD(SC) 271: 1998(1) SLR 219 (SC); Jasbir Singh v. State of Punjab, 1998(1) SLR 312 (P&H) (DB); Pushpa Sharma v. State of Haryana, 1998(1) SLR 558 (P&H) (DB). 32. No Legal Duty to fill-up Vacancies and not allow Vacancies to be accumulated — Even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons; be it istrative, economical or policy; decide not to fill up such posts. This principle applies with all the more force in regard to the creation of new vacancies like by encadrement of new posts; more so when such encadrement or creation of new posts is statutory controlled. Tamil Nadu istrative Service Officers Association v. Union of India, AIR 2000 SC 1898: 2000 SC(5) 728: 2000(3) LLN 474: 2000(2) SLR 659 (SC); See also State of Haryana v. Subhash Chandra Marwaha, 1974(3) SCC 220: 1973(2) SLR 137 (SC). It is neither for the petitioner nor for the Court to assess the exigencies of istration and it is primarily for those who are in charge of the istration to decide whether it is in the interest of istration to allow particular vacancies to be accumulated for a particular period. G.C. Dhiman v. State of H.P., 1979(1) SLR 522. 33. Mere Selection Would Not Give Right to Claim Appointment — A mere selection by the Selection Committee or Service Selection Board would give no indefeasible right to the selected individual to claim appointment to the post in the absence of any order to the same effect by the appointing authority itself. State of Punjab v. Saroj Devi, 1981(1) SLR 49; Davinder Singh v. State of Punjab, 1982(2)

R.8-9]

77


SLR 249. See also Karnataka State Road Transport Mudalgiryappa, 1988(1) SLR 106 (Kar).

Corporation v.

K.C.

Mere emment or inclusion of one”s name in the selection list does not give him a right to appointment. Govt. of Orissa through Secretary, Commerce & Transport Deptt., Bhubaneswar v. Haraparsad Das, 1998(1) SLJ 431. But a duly selected person for being appointed and illegally kept out of employment on of untenable decision on the part of the employer, can not be denied the said appointment on the ground that the has expired in the meantime. Purushottam v. Chiarman, M.S.E.B., 1999(6) SCC 49: 1999(9) JT 334: 2001(1) SLR 62 (SC). 34. Recruitment by Open Competition — The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the service of the most meritorious candidates. State of Mysore v. S.R. Jayaram, 1968(2) SCJ 38: AIR 1968 SC 346: 1968(1) SCR 349: 1968 Lab IC 357. In one case the relevant rule dealing with recruitment was as follows:. “Rule 4. Method of recruitment.— Recruitment in the service shall be by the following methods:. (a) By competitive examination held in accordance with part II of the rules. (b) By promotion of class II officers of the signal engineering department. Not more than 40 percent of the vacancies shall be filled by departmental promotion. This percentage is likely to be varied from time to time, if found necessary. Note. If the quota of 40 percent reserved for class II officers for promotion to class I is not fully utilized, the remaining vacancies shall be filled by direct recruitment under clause (a). (c) By occasional ission of other qualified persons appointed by the Government on the recommendation of the commission. On interpretation of above rules it was held that no doubt the second sentence in clause (b) places a ceiling of 40 percent on the vacancies to be filled up by departmental promotion. The note reinforces this mandate by providing that in case of shortfall in the promotional quota of 40 percent, those vacancies remaining should be allocated to direct recruits. That means, in a given year, the direct recruits can go beyond 60 percent, if sufficient number of promotee officers are not available. It is a different thing that it had never happened and the direct recruitment could not be made in some years even to the full extent of 60 percent. But, that is what the rule provides. However, the rule in so far as it operates against the promotee officers has been diluted to a certain extent by reserving the power to vary the percentage allocated to promotees. The variation, in our view, could be both downward and upward, depending upon the exigencies of service and the march of events. Going by the plain language, the variation could be either way. If the variation was intended only to curtail but not to enhance the promotion quota of 40 percent, suitable language could have been employed. That apart, the word “not more than” itself would have provided some

78


[R.8-9

flexibility to the appointing authority to reduce the promotee quota in a given year for good and relevant reasons. Hence, it is not appropriate and proper to limit the ambit of variation to the reduction of percentage. If the last sentence in clause (b) is to be read subject to the preceding sentence with the appended note, the very purpose for which such power is reserved to the government will be lost. A reading of the rule so as to confine the variation of percentage to impinge on the normal promotee quota but not vice versa is clearly unwarranted either on the plain language of the provision or its intendment. There is nothing which precluded the government of India to take a policy decision that the percentage should be so varied so as to give the benefit to the stagnating promotee officers. When once such policy decision is taken, the normal rule that 40 percent is the maximum for departmental promotees would stand protanto modified for the time being. Of course, such variation, either upward or downward should be based on rational basis and relevant considerations. When once such test is satisfied, there is no difficulty in giving effect to the variation of percentage so as to operate in favour of promotee officers. See Indian Railway, Class II Officers Fedn. v. Anil Kumar Sanghi, AIR 2002 SC 3314: 2002(8) SCC 98: 2002(7) JT 325: 2002 Lab IC 3266: 2002 AIR SCW 3853: 2002(4) All MR 869: 2002(6) SLR 473 (SC): 2003 SCC(L&S) 5: 2003(1) SLJ 85. 35. Appointment of any one who is more suitable — Rule reserving power to the Government to appoint any one it considers more suitable to a particular post is violative of Articles 14 & 16(1). State of Mysore v. S.R. Jayaram, 1968(2) SCJ 38: AIR 1968 SC 346: 1968(1) SCR 349: 1968 Lab IC 357. 36. Recruitment Ratio — Recruitment to posts from different sources. What ratio would be adequate and equitable would depend upon the circumstances of each case and the requirements and needs of a particular post. G.D. Kelkar v. Chief Controller Imports, 1967(1) SCWR 961: AIR 1967 SC 839: 1967(2) SCR 29: 1967(1) LLJ 691: 1967(14) FLR 302. 37. Backward Class, Meaning of — In order to qualify for being called a “backward class citizen” he must be a member of a socially and educationally backward class. It is not merely the educational backwardness which makes a class of citizens backward; the class identified as a class as above must be both educationally and socially backward. Janki Prasad v. State of J&K, 1975(2) SCJ 50: AIR 1973 SC 930; see also M.R. Balaji v. State of Mysore, 1963 Supp(1) SCR 439: AIR 1963 SC 649; State of A.P. v. P. Sagar, 1968(2) SCJ 778: 1968(3) SCR 595: AIR 1968 SC 1379 and Triloki Nath Tiku v. State of J&K, 1969(1) SCJ 306: 1969(1) SCWR 489: AIR 1969 SC 1: 1969(1) SCR 103: 1970(1) LLJ 629: 1968(17) FLR 367. 38. Reservation of Posts for Backward Classes — (i) Clause (4) of Article 16 undoubtedly empowers the State to make reservations of appointments or posts in favour of any backward class of citizens so as to give the class an adequate representation in the services under State. Triloki Nath Tiku v. State of J&K, 1969(1) SCJ 306: 1969(1) SCWR 489: AIR 1969 SC 1; State of Punjab v. Hiralal, 1971(2) SCJ 471: 1971(1) SCWR 46: 1971(2) SLR 98; Mohinder Kumar Sood v. H.P. Public Service Commission, AIR 1982 HP 78: 1982(3) SLJ 313: 1982(2) SLR 344.

R.8-9]


79

(ii) Order under Article 16(4) must be duly published. K.S. Nair v. Oil & Natural Gas Commission, 1974(2) SLR 116. (iii) Reservation can be made by executive order, legislation is not necessary. Mangal Singh v. Punjab State, AIR 1968 Punjab 306. (vi) Castes or groups are specified in relation to a given State of Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or groups in that State. However, it may not be so in another State to which a person belongs thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two states but the considerations on the basis of which they been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same nomenclature in other State and a person belonging to that group is entitled to the rights, privileges and benefits issible to the of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs. Municipal Corporation of Delhi. v. Veena, AIR 2001 SC 2749: 2001(6) JT 413: 2001(6) SCC 571: 2001(3) SCJ 390. 39. Scheduled Castes & Scheduled Tribes, Meaning of — Article 366(24) “Scheduled Castes” means such castes, races or tribes or parts of or group within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution. Article 366(25) - “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution. Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. No court can come to a finding that any caste or any tribe is a Scheduled Caste or Schedule Tribes. Scheduled Caste is a caste as notified under Article 341 and Scheduled Tribe is such tribe or part of tribe as notified under Article 342. The object of Articles 341 and 342 is to provide protection to the of Schedule Castes and Scheduled Tribes having regard to the economic and educational backwardness from which they suffer. Bhaiyalal v. Hari Kishan Singh, 1966(2) SCJ 77: 1965(2) SCR 877: AIR 1965 SC 1577; State of Kerala v. Thomas, 1976(2) SCR 906: AIR 1976 SC 409; Akhil Bhartiya Sashit Karamchari Sangh (Railway) v. Union of India, 1980(3) SLR 645 (SC). See also N.C. Lingam v. Government of India, 1985(3) SLR 682 AP (DB); G. Nooka Rao Reddy v. G.M. South, Central Railway, 1989(3) SLR 488 (CAT Hyderabad). 40. Reservation of Posts for Scheduled Castes and Scheduled Tribes — (i) There is no constitutional duty imposed on the Government to make a reservation for

80


[R.8-9

Scheduled Castes and Scheduled Tribes either at the initial stage of recruitment or at the stage of promotion. Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backwards class of citizens which in its opinion, is not adequately represented in the service of the State. C.A. Rajendran v. Union of India, 1968(1) SCR 721: 1968(2) SCJ 19: AIR 1968 SC 507: 1968 SLR 65; State of Punjab v. Hiralal, 1971(3) SCR 267: 1971(2) SCJ 471: AIR 1971 SC 1777: 1971(2) SLR 98; Dalip Singh v. Union of India, 1981(1) SLJ 470. (ii) State can provide reservations not only for fresh appointments but also at the promotion tier for selection posts. General Manager, Southern Railway v. Rangachari, 1961(2) SCJ 424: AIR 1962 SC 36: 1962(2) SCR 586; State of Kerala v. N.M. Thomas, 1976(1) SCR 906: AIR 1976 SC 409; S.S. Sharma v. Union of India, 1981(1) SCR 1184: 1981(1) SCC 397: AIR 1981 SC 588: 1981(2) SCJ 109: 1981 Lab IC 131: 1981(1) SLJ 443: 1980(3) SLR 511. (iii) State can provide reservation for selection posts. Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India, 1980(3) SLR 645 (SC). (iv) Reservation of a reasonable percentage of posts for of the Scheduled Castes and Scheduled Tribes is within the competence of the State. What the percentage ought to be must necessarily depend upon the circumstances obtaining from time to time. Unlimited reservation of appointments may be impermissible because it renders Article 16(1) nugatory. An exercise of power under Article 16(4) does not mean that the provision made by the State should have the effect of virtually obliterating the rest of Article particularly clauses (1) and (2) thereof. T. Devadasan v. Union of India, 1964(4) SCR 680: AIR 1964 SC 179: 1965(2) LLJ 560; M.R. Balaji v. State of Mysore, 1963 Sup(1) SCR 439: AIR 1963 SC 649; Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India, 1980(3) SLR 645 (SC); Joginder Singh Sethi v. Punjab Government, 1983(1) SLJ 34. (v) Any reservation of appointments made in favour of Tribes specified in the Schedule to the Scheduled Castes Order in relation to any particular State is not violative of Article 16(2) of Constitution — V.B. Singh v. State of Punjab, 1976(1) ILR P&H 769. The order restricting the reservation to the Scheduled Castes and Scheduled Tribes belonging to State of Himachal Pradesh only is saved by Article 16(4) of the Constitution and cannot be struck down. Mahinder Kumar Sood v. H.P. Public Service Commission, AIR 1982 HP 78: 1982(2) SLJ 313: 1982(2) SLR 344 (FB). (vi) The sole purpose of making a special provision of reservation in favour of Scheduled Castes Government Service is to promote the development of society as a whole and to give adequate representation to backward communities. Thus a reasonable balance has to be struck between the claim of backward class employees and those of other employees. The policy of reservation cannot be used for creating monopoly or for unduly disturbing the legitimate interests of other employees. Reservation beyond reasonable limits entrenches upon the principle of equality. Joginder Singh Sethi v. Punjab Government, 1983(1) SLR 442,446 paras 7 and 8: 1983(1) SLJ 34 (P&H).

R.8-9]


81

(vii) In making reservation for Scheduled Castes and Backward Classes, Government may take notice of their strength in the various services. But that does not mean that on the basis of executive instructions, a particular cadre may be made to be manned by Scheduled Castes etc. exclusively or to an abnormal extent. Joginder Singh v. Punjab Government 1983(1) SLR 442: 1983(1) SLJ 34 (P&H). (viii) Reservation: Stage of Selection for Lower School Course — Reservation of posts for Scheduled Castes and Backward Classes cannot be made at the stage of the process for selection of constables for being sent to the lower school course in the Police Training School under Punjab Police Rules, 1934, Rules 13.7 and 13.8. Thus process cannot be equated to promotion. Ram Kumar v. State of Haryana, 1983(1) SLR 435: 1983(1) SLJ 405 (P&H). (ix) Mistakes in Description Cannot be Corrected — In a Karnataka case, respondent originally described the caste (Naik) as Backward Tribe. Later the Tehsildar certified that it was a Scheduled Tribe. Petitioner objected to the respondent being given this benefit. It was held that Government always had the power of correcting mistakes. B.K. Krishna v. State of Karnataka, 1984(3) SLR 733 (Kar). (x) For appointment in the Delhi Judicial Services reserved quota (for Scheduled Castes etc.), must be fixed on the basis of total number of vacancies to be filled up. It cannot depend on the fortuitous circumstances as to how many candidates have qualified for the general seats. Prem Prakash v. Union of India, AIR 1983 SC 1831: 1985(1) SCR 564: 1983 Supp SCC 687: 1984 Lab IC 1448: 1984 Lab IC 1448: 1985(2) LLJ 341: 1985(2) SLR 757: 1984(2) LN 737: 1984(2) SLJ 376. (xi) Where reservation for Scheduled Castes etc. is made for a certain percentage than persons belonging to the reserved category can take advantage of the reservation only till that percentage is reached and not beyond that. For working out this percentage, the promotees/appointees in the cadre whether on the basis of reservation or otherwise have to be taken note of. Any promotion of Scheduled Castes candidate beyond the prescribed limit is not a non est. Mohan Lal Mann v. State of Punjab, 1983(1) SLR 650, 653 para 11 (P&H). (xii) Policy decision taken by the State of Madhya Pradesh that for direct recruitment, relaxation of ing marks by 10% for SC/ST candidates who compete for initial appointments to government service was to be made available and was also to be available to those in service SC/ST candidates who appear at the departmental examination for being recruited to the higher posts as in service candidates. Held that this was a clear cut government policy legally permissible under Article 16(4) of the Constitution for giving 10% relaxation of ing marks to such reserved category candidates as compared to general category candidates. Haridas Parsedia v. Urmila Shakya, AIR 2000 SC 278: 2001(1) SCC 81: 1999(9) JT 152: 2000 Lab IC 222: 2000(1) SLR 310 (SC). 41. Reservation: Carry Forward and Roster — (i) Reservation in promotional avenues based on roster system is valid. B.R. Acharya v. State of Gujarat, 1984(3) SLR 619 (Guj.).

82


[R.8-9

(ii) If a junior officer belongs to Scheduled Caste is promoted in preference to senior officers of other communities, there is no illegality. B.R. Acharya v. State of Gujarat, 1984(3) SLR 619 (Guj) . (iii) If there is only one vacancy and a person belonging to Scheduled Tribe is promoted, there is no illegality. B.R. Acharya v. State of Gujarat, 1984(3) SLR 619 (Guj) . (iv) Reservation can be made by statutory rules or executive orders. B.R. Acharya v. State of Gujarat, 1984(3) SLR 619 (Guj). (v) Where the roster has been drawn up for High Court employees under Article 229 of the Constitution, it has to be followed. “The very idea of drawing up a roaster is to depart from the general principle that seniority in the lower cadre must be reflected in promotion also.” Sheodhar Singh v. State of Bihar, 1985(2) SLR 470, 475, para 7 Pat (FB). (vi) Under A.P. State Road Transport Corporation Employees (Reservation) Regulations, 1966, Regulation 12(2)(b), where a Scheduled Caste candidate is selected upon competition he will still be placed on the Scheduled Caste category in the roster and be appointed in the quota reserved for Scheduled Castes so that for promotion he will rank at No. 1. C. Damodar Das v. T. Penchaliach, 1984(3) SLR 841 (AP) (DB). (vii) Vacancies are to be filled up as per roster point, whether the vacancies arise on of retirement of an officer of the Scheduled Caste or Tribe. I.H. Patel v. R.K. Mishra, 1983(3) SLR 24, 25, para 5 Guj. (viii) In U.P. Subordinate Services, 18 percent of direct recruitment posts are reserved for Scheduled Castes, with the scheme contemplating a roaster for every 25 vacancies. Appointment in the grade of Hindi stenographer was refused on the ground that more than 21 per cent of the posts were being manned by persons belonging to Schedule Castes. Order was held improper. If the roster were to be followed, the post would have gone to Scheduled Castes. Hira Lal v. District Judge, Ghaziabad, 1983(2) SCR 739: AIR 1984 SC 1212: 1983(3) SCC 371: 1983 Lab IC 776: 1983(2) LLN 338: 1983(1) SLJ 702: 1983(2) SLR 79: 1983 SCC (Lab) 389: 1983 IJR (Civil) 59. 42. Reservation of Posts in Higher Services — (i) There is no discrimination as between classes I and II where there is no reservation and classes III and IV where reservation has been made for scheduled castes and scheduled tribes. In view of the requirement of efficiency in the higher echelons of service it is obvious that the classification made in the impugned order is reasonable. C.A. Rajendran v. Union of India, 1968(2) SCJ 19: 1968(1) SCWR 574: AIR 1968 SC 507: 1968(1) SCR 721. (ii) Where appointments and promotions to responsible public offices are made greater circumspection would be required in making reservations for the benefit of any backward class because efficiency and public interest must always remain paramount. It is implicit in the idea of reservation that a less meritorious person is to be preferred to another who is more meritorious. Janki Prasad v. State of J&K, 1975(2) SCJ 50: AIR 1973 SC 930: 1973(3) SCR 236: 1973(1) SCC 420: 1973(1) SLR 719.

R.8-9]


83

(iii) Reservation in respect of Scheduled Castes and Scheduled Tribes in the examination for recruitment to the Himachal Judicial Service upheld. Mohinder Kumar Sood v. H.P. Public Service Commission, AIR 1982 HP 78: 1982(2) SLJ 313: 1982(2) SLR 344 (FB). 43. Reservation at the level of super specialisation— At the level of super specialisation there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of a super speciality, something more than a mere professional competence as a doctor is required. A super specialist acquires expert knowledge in his speciality and is expected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is in public interest that we promote these skills. Such high degrees of skill and expert knowledge in highly specialised areas, however, cannot be acquired by anyone or everyone. For example, specialised sophisticated knowledge and skill and ability to make right choices of treatment in critical medical conditions and even ability to innovate and device new lines of treatment in critical situations, requires high levels of intelligent understanding of medical knowledge or skill and a high ability to learn from technical literature and from experience. These high abilities are also required for absorbing highly specialised knowledge which is being imparted at this level. It is for this reason that it would be detrimental to the national interest to have reservations at this stage. Opportunities for such training are few and it is in the national interest that these are made available to those who can profit from them the most viz. the best brains in the country, irrespective of the class to which they belong. Preeti Srivastava v. State of Madhya Pradesh, 1999(4) SLR 687: AIR 1999 SC 2894: 1999(7) SCC 120: 1999(15) JT 498. 44. Reservation for Scheduled Castes and Scheduled Tribes, Standard in Qualifying Examination— It is now well accepted, and has been affirmed by successive decisions of Supreme Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes. S.S. Sharma v. Union of India, 1981(2) SCJ 109: 1981(1) SLJ 443: 1981 Lab IC 131: AIR 1981 SC 588: 1981(1) SCR 1184: 1981(1) SCC 397: 1980(3) SLR 511. If lesser marks are prescribed for SC and STs, or extra marks are added to give them an advantage, this does not militate against the Constitution. Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India, 1980(3) SLR 645 (SC). 45. Reservation of Vacancies for Ex-servicemen— (i) The State is justified in classifying them separately as a source of recruitment and reserving posts for them. Jagdish Rai v. State of Haryana, 1977 SLJ 498: 1977(1) SLR 77 (FB); Mohinder Kumar Sood v. H.P. Public Service Commission, 1982(2) SLJ 313: 1982(2) SLR 344: AIR 1982 HP 78. (ii) If there is a reserved post in a particular service, the said post has to be d so as to enable all eligible persons to apply and compete. State of Punjab v. Captain Rattan Pal Sharma, 1982(1) SLR 364.

84


[R.8-9

(iii) Where rules regarding reservation for Released Armed Forces contain no definition of such personnel, persons released on comionate grounds or on their own cannot be excluded from the benefit of reservation. Ram Kumar v. Chairman, Departmental Recruitment Committee, 1983(2) SLR 758 (P&H). (iv) When making provision for reservation of posts for dependent children it is permissible not to provide for reservation for dependents of deceased, ex-servicemen. Dr. G.K. Diwan v. State of Punjab, 1985(2) SLR 403 P&H (DB). (v) With reference to the Punjab Rules as to reservation for ex-servicemen, namely the demobilised Indian Armed Forces etc. Rules 1972, Rule 2, a person who ed the army as non-commissioned officer before 1962 but was appointed as a commissioned officer on or after the 1 st November, 1962 (i.e. the date mentioned in the rules), is also eligible for appointment against the reserve quota. The crucial date is also the date of commissioning. Mohan Singh v. State of Punjab, 1983(1) SLR 454 (P&H). (vi) Petitioner was considered not eligible for a post reserved for ex-servicemen and the post was thrown open to the general category. Petitioner”s contention that he should be considered at the post of the other candidates from the general category was held to be unacceptable. Gursher Singh v. State of Punjab, 1984(1) SLR 730 (P&H) following Jagmohan Singh v. State of Punjab, 1980(3) SLR 400. (vii) Petitioner was senior in service to respondent. But respondent was promoted as assistant and petitioner was deprived of it on the ground of lack of five years experience as clerk. This requirement was, however, inserted by rules which had no retrospective effect. Denial of promotion to the petitioner was held to be illegal. Gurmit Singh v. Chief Secretary, Government of Punjab, 1983(1) SLR 141 P&H. (viii) Rule 2(c)(ii) of the Ex-servicemen (Re-employment in Central & Civil Services and Posts Rules, 1979 covers a person who (though in actual service) accepts release within the next 6 months. G.K. Prajapati v. State Bank of India, 1985(2) SLR 690 Paras 8-9 (Guj). 46. Reservation of Seats or Posts for Women — Article 15(3) of Constitution is so widely worded that it can successfully help women and in that process can make men ineligible so long as this is done as “special provision for women”. The mere fact that reservation of some posts is made for women does not mean that there is a complete exclusion of men. Charan Singh v. Union of India, 1979(1) SLR 553: 1979 SLJ 263 see also Note 81. Disqualification on ground of sex. But there could not be 100% reservation for women. S. Renuka v. State of A.P., 2002(3) SLR 407 (SC): 2002(3) JT 246: 2002(3) SCC 641. 47. Reservation in Judiciary — Under Article 16(4) the State is enabled to provide for reservations in Services. But so far as “Judicial Service” is concerned, such reservation can be made by the Governor, in exercise of his rule making power only after consultation with the High Court. The enactment of any statutory provision de hors consultation with the High Court for regulating the recruitment to District Judiciary and to Subordinate Judiciary will clearly fly in the face of the complete scheme of recruitment and appointment to Subordinate Judiciary and the exclusive filed

R.8-9]


85

earmarked in connection with such appointments by Articles 233 and 234. It is not as if that the High Courts being constitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Article 16(4). The High Court can get consulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an indirect method, completely bying the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the Constitutional scheme, will also fall foul on the concept relating to “separation of powers between the legislature, the executive and the judiciary” as well as the fundamental concept of an “independent judiciary”. Both these concepts are now elevated to the level of basic structure of the Constitution and are the very heart of the Constitutional scheme. State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296: 2000(4) SCC 640: 2000(3) JT 221: 2000(2) SLR 448: 2000 Lab IC 1389: 2000(2) SCJ 599. 48. Basis of Classification for Discrimination Not to be Arbitrary — The Supreme Court in Ajay Hasia v. Khalid Mujib Sahravardi, AIR 1981 SC 487: 1981(2) SCR 79: 1981(1) SCC 722: 1981(1) LLJ 103: 1980(3) SLR 467: 1981(2) SLJ 651 and Ramana Deyaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628: 1979(3) SCR 1014: 1979(3) SCC 489: 1979(2) LLN 217: 1981(1) LLN 270 have held that the State must show that the discriminatory action was not arbitrary. It must now be taken to be well settled that what Article 14 strikes at is arbitrariness. 49. Reasonable Classification — The fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the turtwin tests of classification being found on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. The State would have to affirmatively satisfy the Court that the turtwin tests have been satisfied. Case law discussed. D.S. Nakara v. Union of India, AIR 1983 SC 130: 1983(1) SCC 305: 1983(1) LLN 289: 1983(2) SLR 246: 1983 Lab IC 1 (SC): 1983(1) SLJ 131. After a review of a large number of decision in Air India v. Nagresh Meerza, AIR 1981 SC 1829: 1982(1) SCR 438: 1981(4) SCC 335: 1981(2) SLJ 349: 1981 Lab IC 1313: 1982(1) SLR 117, it was held well established that Article 14 is certainly attracted where equals are treated differently without any reasonable basis. Artificial classification on the ground of sex in the matter of setting apart a greater number of posts for being filled up by promotion by the male candidates without any reasonable basis of such classification is unreasonable. Maya Mukherji Jha v. State of West Bengal, 1982(2) SLR 405. Where there is no nexus between the classification made and the object which is sought to be achieved, such a classification is unreasonable. State of Maharashtra v. Raj Kumar, 1982(2) SLJ 549: 1982 Lab IC 1597: AIR 1982 SC 1301: 1982(3) SCC 313.

86


[R.8-9

Every discrimination or classification will not offend Article 14 of the Constitution. It is only an unreasonable discrimination which is liable to be struck down. G.K. Nayar v. Union of India, 1982(2) SLJ 636. Concept of equality has an inherent limitation arising from very nature of the guarantee under the Constitution and those who are similarly circumstanced are entitled to equal treatment. If there is a rational classification consistent with the purpose for which such classification was made, equality is not violated. Article 16 of the Constitution does not bar a reasonable classification of employees or reasonable tests for selection. Equality of opportunity of employment means equality as between of the same class of employees and not equality between of separate independent class. Union of India v. IM Havildar/Cerl SC Bagari (No. 664950), AIR 1999 SC 1412: 1999 JT(3) 124: 1999 Lab IC 1561: 1999(2) SLR 775 (SC). 50. Reservation for Children of Bank Employees — Reservation for children of employees of the bank (Central Bank of India) is unconstitutional. It violates Article 16 of the Constitution, being based only on descent. The Central Bank falls within the definition of “State”. A.K. Saha v. Central Bank of India, 1983(1) SLR 8 (Cal) following Chitra Ghosh (Kumari) v. Union of India, AIR 1970 SC 35: 1970(1) SCR 413: 1969(2) SCC 228: 1970(1) SCJ 240 and Anjali Roy v. State of West Bengal, AIR 1952 Cal 325. 51. Appointment, Infraction of Rules — If the appointment itself is in infraction of the rules or if it is violation of the provisions of the constitution, illegality cannot be regularised. R.N. Nanjundappa v. T. Thimmiah, 1973(2) SCJ 265: 1972 SLR 94: AIR 1972 SC 1767: 1971(3) SCC 767: 1972 Crl LJ 828. Certain persons were appointed as Naib Tehsildars in the Punjab. Their appointments were found not to be in order (as the appointing power vested only in the Commissioner and not in the Department Promotion Committee). However they had been in service for 7 years and had never become overage for Government Service. The Division Bench set aside the Single Judge”s order quashing the appointment. Gurbux Rai Sood v. State of Punjab, 1984(1) SLR 83 P&H (DB). 52. Appointment Without Rules — Government can create posts, but must make rules laying down qualifications. Balakrishna Pillai v. State of Kerala, 1983(3) SLR 492 (Ker). 53. Appointment in Violation of Select List — Mere inclusion of name in a select list as such confers no title to appointment. It is one thing to say that inclusion in a list cannot or does not confer a right or title to appointment; but it is a far cry there from to state that the appointing authority has the right to pick and choose the persons from the ranked list as it pleases. The selected persons would be entitled to be appointed in accordance with the rank list in their usual chance and turn for appointment, if and when it arises from out of list as long as appointments are made from the said list. P. Nalini v. Divisional Manager, 1978(1) SLR 623. The Department is not expected to concern itself, whether the select list has become time barred. S. Jeevadas v. State of Kerala, 1978(2) SLR 590.

R.8-9]


87

It is well settled that in making appointments the Government should not act arbitrarily. If the Government does not make any appointment, no candidate can insist on such appointments being made merely because he has been selected for one of the posts. The Government may not appoint all the candidates selected for such appointments or fill up all the vacancies, but in filling up the vacancies the Government cannot act arbitrarily. The appointments must be made in order of the rank in the list. If Government does not choose to appoint a candidate whose rank is higher in the list than one who has been appointed, such action of the Government must be justified with reasonable grounds. The Court is entitled to know the reasons which prompted the Government to appoint a less meritorious candidate in preference to another more meritorious one. If there is no reasonable ground for the exercise of such discretion, the Court will at once intervene and strike down the action of the Government as violative of Article 14 and 16(1) of the Constitution. A fair play in action on the part of the Government is postulated in all executive acts including the employment to State services. State of West Bengal v. Tapan Kumar Sen, 1982 Lab IC 303: 1982(1) SLR 584. 54. Appointment for Political Objects — It will be an abuse of the executive powers of the State, if posts are created in public service and appointments are made thereto, for achieving political objects or on considerations which are extraneous made irrelevant to the object for which the power is vested in the State. K.M. Joseph v. State of Kerala, AIR 1968 Ker 244. 55. Whole Thing Completed in Haste in one day in absence of Secretary — Regular Secretary was on leave who was on Departmental Promotion Committee. Principal Secretary to the Chief Minister was appointed additionally as Secretary. Whole thing was completed in haste in one day. This suggests that some higher up was interested in pushing through the matter hastily when Secretary of Department was on leave. Held, matter requires to be considered afresh. S.P. Kapoor v. State of Himachal Pradesh, AIR 1981 SC 2181: 1982(1) SCR 1043: 1981(4) SCC 716: 1982 Lab IC 9: 1981(3) SLR 220. 56. Consideration of Extraneous Matters — When consideration, extraneous to the suitability of a person for appointment are taken into in making an appointment there is an abuse of discretionary power and so the exercise of power exceeds the bounds of authority. While the fitness of a person to an office may be solely within the discretion of the appointing authority, the discretion must be exercised bona fide. A. Mohambaram v. M.A. Jayavelu, AIR 1970 Madras 64. 57. hip of Political Party in Power: No Disqualification for Appointment — The fact that an aspirant for office happens to be an active member of a political party in power by itself should not and cannot disqualify him if otherwise suitable for being appointed to a post. A. Mohambaram v. M.A. Jayavelu, AIR 1970 Madras 64. 58. Political convictions or affiliations no bar for Public Employment — The freedom of association entitles a citizen to any party or association, notwithstanding its political colour or programme, so long as that party or organisation is not banned or declared illegal by law. A citizen who is otherwise found fit for public

88


[R.8-9

employment cannot be discriminated or priced out of employment market because of his political convictions or affiliations. Of course, once he enters into the service, he would be bound by and governed by the rules and the Code of conduct obtaining in that service and cannot act contrary to them. But at the stage of seeking employment he cannot be disqualified because of his political conviction or affiliation. Kalluri Vassayya v. Superintendent of Post Office, 1980(2) SLR 433: 1982 Lab IC 1143. 59. Termination on Police Report — Termination of service found on a police report, that the employee was not a fit person to be entertained in Government service as he had taken part in R.S.S. and Jan Sangh activities is illegal. Termination cannot be done on the basis of past political activities. The order is penal in character and violates Articles 14, 16 and 311 of the Constitution. State of M.P. v. Ramashankar Raghuvanshi, 1983(2) SCR 393: 1983(1) SLR 575 (SC) (Freedom of Speech discussed). See also Coir Board, Ernakulam, Cochin v. Indira Devi, 1998(1) SLJ 405. For compulsory retirement in public interest see State of Madhya Pradesh v. Indra Sen Jain, 1998(1) SLJ 305. See also George Mathew v. Union of India, 1990(3) SLR 407, 408 (CAT Bombay). For termination by incompetent authority see Santosh Jain v. State of Punjab, 1985(2) SLR 330 P&H. 60. Citizen be heard before he is debarred from Employment or Appointment — A citizen shall not be debarred from being considered for employment or appointment to an office under the State by an ex parte finding arrived at against him by a functionary of the State that he has been found dishonest and as such the door of such employment or appointment shall remain shut on his face. Before the door is slammed against him he has a right to be heard. M.K. Mathulla v. N.N. Wanchoo, AIR 1970 Delhi 195: 1970 DLT 379 (DB). 61. Ad hoc appointment, What it is — The expression “ad hoc” in its true meaning would mean “stop gap”. Ad hoc appointment is for a particular purpose and as soon as the purpose is achieved the person holding the appointment can be reverted or his services could be terminated. K.K. Vij v. Government of H.P., 1970 SLR 8; Narendra Bahadur Srivastava v. Public Service Commission, U.P., 1970 ALJ 1337: 1971(2) SLR 414; Bansi Ram Sharma v. State of H.P., 1974(1) SLR 358; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1976 SLJ 271: 1975 Lab IC 1748: 1975(2) SLR 740; Pooswamy, M. v. Union of India, 1978 SLJ 297: 1978(2) SLR 334; S.K. Verma v. State of Punjab, 1979(2) SLR 164: 1979 SLJ 477 (FB); Lashkar Singh v. Municipal Corporation of Delhi, 1978 SLJ 695: 1979(1) SLR 233; Bishundeo Mahto v. State of Bihar, 1981(3) SLR 467 (FB). See also Virendra Singh Malik v. Haryana State Remote Sensing Application Centre, 1994(5) SLR 526 (P&H); Gordhan Gulia v. State of Haryana, 1997(1) SLR 353; Bovaiah v. District Co-operative Central Bank Ltd., Sangareddy, 1998(1) SLR 276 (AP) (DB). 62. Ad hoc Appointment, When Can be Made — If an appointment is made for a particular end or purpose at hand and without reference to wider application or employment, it would ad hoc appointment. So where there is a leave or other temporary vacancy, it is quite permissible for the appointing authority to make ad hoc appointment

R.8-9]


89

for the particular purpose of filling it, so long as that appointment is otherwise, unexceptionable. Such ad hoc appointments are often made where there are no service rules to guide and control the discretion of the appointing authority. It may also be that the service rules may themselves provide for the making of ad hoc appointments. But where a service rule provides for the filling of a temporary vacancy, that rule will govern the discretion of the appointing authority and will prevail. It may be that while making the appointment under the service rules the appointing authority may as a matter of abundant caution, characterise it as ad hoc, but it is not possible for that authority to disregard the rule altogether and take the stand that it is not bound by it. To put it more plainly, it is not permissible for the appointing authority in such a case to say that it can make an ad hoc appointment simply for the particular end or purpose of giving the employment to a particular person. Swayamber Prasad Sudrama v. State of Rajasthan, AIR 1972 Raj 69: 1971(2) SLR 767. An ad hoc appointment required to be made “immediately” in the public interest may be made dispensing with reference to the public service commission. However, if a candidate already in judicial service is to be appointed, obviously his services shall have to be spared by the High Court falling which he cannot be appointed even ad hoc. A post which has been sanctioned for, or is likely to last for, more than four months has to be filled up by making appointment on regular basis in consultation with the public service commission. If the person chosen for such appointment is a judicial officer, he cannot be appointed without consulting the High Court, such consultation being mandatory. Gauhati High Court v. Kuladhar Phukan, 2002(3) JT 412: 2002(3) SLR 257 (SC). (i) Ad hoc Appointment for a Fixed Period Without Consultation with Public Service Commission — See Allied Service Matters — Public Service Commission. 63. Ad hoc Appointment/Promotion: All Eligible Persons be Considered — The case of all eligible candidates must be considered for promotion even if the appointment or promotion is to be made on ad hoc basis. Gordhan Lal v. S.K. Durgia, 1977 SLJ 131: 1977(1) SLR 531. Promotion purely on ad hoc basis was made on the recommendations of the Departmental Promotion Committee which did not consider the case of petitioner. Promotion of respondent quashed. Hari Singh v. State of H.P., 1981(1) SLR 330. Any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a Court decides that in order only to remove hardship such roster point promotees are not to face reversions, then it would in our opinion be, necessary to hold - consistent without interpretation of Articles 14 and 16(1) - that such promotees can not plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while Courts can relieve immediate hardship arising out of a past illegality, Court cannot grant additional benefits like seniority which have no element of immediate hardship. Ajit Singh v. State of Punjab, AIR 1999

90


[R.8-9

SC 3471: 1999(7) SCC 209: 1999(7) JT 153: 1999(7) SLT 476: 1999 Lab IC 3128: 1999(4) LLN652: 1999(5) SLR 268. Appointment on ad-hoc basis clearly stipulating that the ad hoc service shall not be counted towards seniority. Subsequent claim of selection grade by including the service referred on ad hoc basis in the past service is not proper. Held that service of employees commenced on regular appointment after selection of UPSC and not earlier. State of Haryana v. Haryana Veterinary & A.H.T.S. Asson., AIR 2000 SC 3020: 2000(8) SCC 4: 2000(10) JT 561: 2000 Lab IC 3127: 2000(4) LLN 588: 2000(5) SLR 223 (SC). 64. Ad hoc Appointment does not vest Right to Hold Post — Ad hoc appointee or promotee has no right to the post because by its very nature it is a stop gap arrangement until a regular appointment or promotion is made and therefore, in that sense the incumbent holds a very precarious tenure and would, therefore, be liable to be reverted to make room for a regular appointee or promotee, pending which appointment or promotion, the ad hoc arrangement was resorted to. M. Venkat Swamy v. Government of A.P., 1972 SLR 249; Pooswamy, M. v. Union of India, 1978 SLJ 297: 1978(2) SLR 334; Dalpratap Singh v. State of M.P., 1980(1) SLR 19; Bishundeo Mahto v. State of Bihar, 1981(3) SLR 467. An ad hoc appointee is not endowed with any right whatsoever. Andesanand Jha v. State of Bihar, 1982 Lab IC 1842. Promotion on a higher post on ad hoc basis when sent on deputation and continued to function on that post on ad hoc basis for a very long time would not vest in them a right of regularisation in the department where he is on deputation. They can under the rules claim regularisation on a post on their parent division/office. Thus, they are only entitled to regularisation on their turn in the parent division/office strictly in accordance with the rules and instruction on the subject. Durbeen Singh v. Union of India, 2002(3) SLR 611 Raj (DB). 65. Ad hoc Appointment does not Confer any right to claim Such Post or Seniority on that — Jiwan Lal v. State of H.P., 1980(2) SLR 799; A.V. Sharma v. State of H.P., 1979 SLJ 642: 1981(1) SCR 359. 66. Ad hoc Appointment, Place of Promotees — Where ad hoc appointments are made pending the filling up of posts through Union Public Service Commission the placing of direct recruits over the promotees does not contravene Article 14. G.D. Kelkar v. Chief Controller, Imports, 1967(1) SCWR 961: AIR 1967 SC 839: 1967(2) SCR 29. 67. Ad hoc Appointment or Promotion: (i) Reversion — An ad hoc appointment or promotion continues to be ad hoc and temporary even though the petitioners were allowed to continue in them. Their reversion or discharge would not amount to dismissal, removal or reduction in rank within the meaning of Article 311(2). H.L. Radhey v. Delhi istration, AIR 1969 Delhi 246; H.B. Vashishtha v. Union of India, 1973 SLJ 921; Posswamy M. v. Union of India, 1978 SLJ 297: 1978(2) SLR 334.

R.8-9]


91

Petitioners were promoted on ad hoc basis subject to the approval of Commission. Commission refused to give its approval. Reversion valid. B.S. Bansal v. State of Punjab, 1978(2) SLR 553: 1979 SLJ 67. Petitioners were promoted on ad hoc basis but were reverted for not ing departmental examination. Reversion was proper. State of Gujarat v. M.A. Kadri, 1979(2) SLR 31. Incumbent of the post had been suspended and petitioner was promoted on ad hoc basis till the decision of the suspension case. Holder of post was exonerated and the petitioners was reverted to his original post. Amar Nath Gupta v. State of H.P., 1979(2) SLR 44. It is beyond doubt that even though an ad hoc appointee has no right to hold that post to which he is so appointed, he can nevertheless be reverted to his lower substantive position only for valid reasons such as his misfit state to hold the post, the availability of the person holding a lien on the post, selection of a regular incumbent or other exigencies of public service. An ad hoc appointee cannot, therefore, be reverted without any rhyme or reason. An ad hoc appointment, though by its nature a precarious tenure, nevertheless carries a limited right to that extent and if such an appointee is reverted without a valid reason, he would be entitled to challenge it and seek an enforcement of the right. Kuldeep Chand Sharma v. Delhi istration, 1978 SLJ 461: 1978(2) SLR 379. Where the ad hoc promotee was reverted and juniors to him were retained, the order was held violative of Article 16. Arun Kumar v. Union of India, 1976 SLJ 163; R.X.A. de Monte Furtado v. of Goa, 1982(2) SLJ 103: AIR 1982 Goa 34. The petitioner was appointed on ad hoc basis and held various posts. He was reverted to his substantive post and on the same day he was placed under suspension with immediate effect. Held, the reversion amounts to reduction in rank, under the circumstances of the case. Since this reduction was done without the procedural safeguards of Article 311(2) of the Constitution having been followed and is, as such invalid. R.X.A. de Monte Furtado v. of Goa, 1982(2) SLJ 103: AIR 1982 Goa 34. (ii) Compulsory Retirement — An officiating or ad hoc charge that a permanent civil servant may have a post would not determine the liability to being considered for premature retirement. If he is retired from service to which he belongs, he ceases to be in service and the ad hoc appointment that he may hold falls within it. K.R. Tahiliani v. Union of India, 1978(1) SLR 815. For compulsory retirement in public interest see State of Madhya Pradesh v. Indra Sen Jain, 1998(1) SCJ 305. For refusal of counting of previous qualifying service for grant of retirement benefits see Union of India v. Dr. S. Baliar Singh, 1998(1) SCJ 348. (iii) Termination of Service — Where the services of an ad hoc employee are not being governed by statute of service rules his services can be terminated in accordance with his letter of appointment. S.K. Verma v. State of Punjab, 1979 SLJ 477: 1979(2) SLR 164 (FB). The services of an ad hoc employee can be terminated in accordance with the of his employment without any prior notice and not

92


[R.8-9

necessarily for a valid justification only. Om Parkash Sharma v. State of Haryana, 1981(1) SLR 314: 1982 Lab IC 501. If a screening was made by the authority concerned for the purpose of deciding the question of further retention in service and it was found on such screening that it was not desirable to continue the petitioner in further employment, then it can only be said that termination was a discharge, simpliciter, the order being a simple order of discharge without casting any aspersion or attaching any stigma to his character. The unsatisfactory work of the petitioner may only be the motive for terminating his services but was not the basis for the same. Dr. B.K. Gupta v. Union of India, 1978(1) SLR 312. Where services of an ad hoc appointee were terminated and juniors to her were retained, the termination order was set aside. Rupinder Kaur v. Secretary to Government of Punjab, 1980(1) SLR 710. 68. Ad hoc appointment: Ad hocist has no right either of Seniority or Otherwise on the Post — An ad hocist has got no right either of seniority or otherwise on the post on which his ad hoc appointment is made and his right to that post begins or comes into existence only from the date on which his services are regularised. It is not open to him to claim the benefit of the services on the post on which he has served merely as an ad hocist. A.V. Sharma v. State of H.P., 1979 SLJ 642: 1981(1) SCR 359. When the period of ad hoc appointment is short and the appointment is not made in accordance with the rules prescribed for the purpose the said period of ad hoc appointment cannot be taken into for considering the seniority. Pushpa Arya v. Director of A.I.I.M.S., 2001(4) SLR 621 Delhi: 2001(6) AD(Delhi) 890: 2001(94) DLT 60. 69. Officiating and Substantive, Meaning of — In ordinary sense of the words in the context of service, “to officiate” is to “perform the duties of an office”, and substantive means “permanent”. Substantive service, therefore, means service as a permanent holder of an office, and in contradistinction, officiating service means “service rendered as a non-permanent holder”. Service which is not substantive is officiating. P.C. Unhikrishnan Nambiar v. State of Kerala, AIR 1965 Ker 84; Jugraj Singh v. State of Punjab, 1969 SLR 622 (FB): 1970 Lab IC 535. For detailed discussion see Ajudhia Nath Dhingra v. Union of India, 1975(2) SLR 230: 1976 SLJ 357 (FB); Laskher Singh v. Municipal Corporation of Delhi, 1978 SLJ 695: 1979 SLR 233. A person is said to hold a post in a substantive capacity when he holds it for an indefinite period specially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation. Baleshwar Dass v. State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1980 Lab IC 1155: 1981(1) SCJ 421: 1980(3) SLR 422: 1981(1) SLJ 223 (SC): In this case the Supreme Court also held that merely because a person is a temporary appointee, it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment. Kamla Prasad v. State of Bihar, 1981(3) SLR 717.

R.8-9]


93

Even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous offciation. G.P. Doval v. Chief Secretary, Government of U.P., 1984(4) SCC 329: 1984(2) SLR 555 (SC) relying upon L. Chandrakishore Singh v. State of Manipur, AIR 1999 SC 3616: 1999(8) SCC 287: 1999(7) JT 576: 1999 Lab IC 3543: 1999(4) LLN 1159: 1999(83) FLR 770: 1999(3) SLR 652: 1999(5) SLR 538: 1999(3) SCJ 526: 2000(2) SLJ 4. 70. Appointment: Part Time — If a Government servant is appointed “part time” against a permanent post without any qualification or reservation, his appointment is to be considered permanent for only hours of work and has nothing to do with the nature of appointment. He cannot be removed arbitrarily. Gurdarshan Singh Grewal v. State of Punjab, 1983(1) SLR 570 (P&H) following State of Assam v. Kanak Chandra Dutt, 1967(1) SCR 679: AIR 1967 SC 884: 1968(1) LLJ 288: 1967(14) FLR 299: 1967(1) SCWR 228: 1967 SCD 521: 1967(2) SCJ 461. 71. Appointment: Excluded Post — Under the Punjab Service of Engineers, Class I (B&R) Rules, 1960 a transfer (to a cadre post) having a lien on an excluded post becomes a member of the service only from the date of his substantive appointment to the cadre post in the service. Raja Ram Sheoram v. State of Haryana, 1984(2) SLR 675: 1984(2) SLJ 254 (P&H) (DB) following M.S. Miglani v. State of Haryana, 1983(1) SLR 423. 72. Appointment, Void — Appointment of lecturer without approval of the concerned authority under Section 16F, U.P. Intermediate Education Act, 1921 is void. Premwati Nautiyal v. Narendra Mahila Vidyapith, 1984(3) SLR 291, 297, 298 para 6 (All). See also K.M. Agrahare v. Chief Secretary, Delhi n., 1989(3) SLR 357 (CAT New Delhi). 73. Appointment Until Further Orders — An appointment which is regular on probation basis cannot be regarded as temporary. Where the appointment order mentioned it as “Appointment on regular basis until further orders” the words “until further orders” are irrelevant and are to be ignored. 1985(2) SLJ 680: 1985 SLR 204, 209 para 7 and 8 (SC). 74. Substantive Appointment to a Permanent Post — A substantive appointment to a permanent post need not necessarily mean a permanent appointed post though it would be presumed to be so unless stated to the contrary. The appointment of a person as a probationer can be said to be a substantive appointment to a permanent post but it would not be presumed to be a permanent appointment to a permanent post in as much as the services of such a person can be terminated during the period of probation. Jiwan Das v. Municipal Corporation of Delhi, 1971(2) SLR 277 (Delhi): 1971 Lab IC 795; Ajudhia Nath Dhingra v. Union of India, 1975(2) SLR 230: 1976 SLJ

94


[R.8-9

357 (FB); Lashker Singh v. Municipal Corporation of Delhi, 1978 SLJ 695: 1979(1) SLR 233. 75. Permanent appointment and appointment on probation, distinction between — Though both the appointments may be made substantively to a permanent post, the permanent appointee gets a title or a right to hold a post but the probationer does not get such a right. Jiwan Das v. Municipal Corporation of Delhi, 1971(2) SLR 277 Delhi: 1971 Lab IC 795; Ajudhia Nath Dhingra v. Union of India, 1975(2) SLR 230: 1976 SLJ 357 (FB). The very fact that a person is a probationer implies that he has to prove his worth and suitability for the higher post in which he is officiating. If his work is not found to be satisfactory, he is liable to be reverted to his original post even without asg any reason. High Court of Madhya Pradesh through Registrar v. Satya Narayan Jhavar, AIR 2001 SC 3234: 2001(7) SCC 161: 2001(6) JT 368: 2001 Lab IC 3281: 2002(1) BLJR 450: 2001(91) FLR 626: 2002(1) JLJR 40: 2002(1) Jab LJ 103: 2002(1) Pat LJR 25: 2001 SCC (L&S) 1087: 2001(3) SCJ 135: 2001(3) SLR 645. 76. Post Likely to Continue — Where in the ment of the post it was stated that the post “likely to continue” after………, it was no assurance that the post would be made permanent. Kedar Nath Bahal v. State of Punjab, 1973(1) SCJ 95: AIR 1972 SC 873: 1972 SLR 320. 77. Officiating or Temporary, Difference in — There is a little difference in officiating and temporary appointment. Ram Chandra Chaudhuri v. Secretary to Government of West Bengal, AIR 1964 Cal 265; Parshottam Lal Dhingra v. Union of India, 1958 SCJ 217: AIR 1958 SC 36: 1958 SCR 828. 78. Temporary or Regular — Mere language of the order of appointment is not the sole guiding factor to determine whether the appointment is temporary or regular. The circumstances of the case at the time of appointment and subsequently should be taken into consideration. J.J.Muralidhara Rao v. State of A.P., 1971(1) SLR 523. For full discussion please see Lashkar Singh v. Municipal Corporation of Delhi, 1979(1) SLR 233: 1978 SLJ 695. 79. Temporary Substantive Appointee Does Not Become Permanent if Post Declared Permanent — The mere fact that a person who is appointed in a substantive capacity to a temporary post does not become permanent if the post is declared to be permanent unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. Director of Panchayat Raj v. Babu Singh, 1973(2) SCJ 577: AIR 1972 SC 420; State of U.P., v. Nand Kishore Tandon, AIR 1977 SC 1267: 1976(4) SCC 823: 1977 Lab IC 838. See also P.K. Mary v. Director, I.C.A.R., 1990(6) SLR 322 (CAT Ernakulam); Harinder Sharma v. State of Punjab, 1998(1) SLR 361 P&H (DB); State of Tamil Nadu v. E. Pariporranam, 1991(3) SCR 618: 1992(1) SCC Supp 420: AIR 1992 SC 1823: 1992 Lab IC 1803: 1992(19) ATC 653: 1992(6) SLR 730: 1992 AIR SCW 2057. 80. Temporary Post Can Be Held Substantively — Temporary post can be held substantively but it does not make the post substantive. Parshottam Lal Dhingra v. Union of India, 1958 SCJ 217: AIR 1958 SC 36: 1958(1) LLJ 544; Rattan Lal Gulati v.

R.8-9]


95

Union of India, AIR 1955 Punjab 229; V.P. Rehbar v. Punjab State, AIR 1965 Punjab 94; Jugraj Singh v. State of Punjab, 1970 Lab IC 535: 1969 SLR 622 (FB); Baleshwar Dass v. State of U.P., AIR 1981 SC 41: 1981(1) SCR 449: 1980(4) SCC 226: 1981(1) SCJ 421: 1981(1) SLJ 233: 1980(3) SLR 422 (SC); Bishundeo Mahto v. State of Bihar, 1981(3) SLR 467; Kamla Prasad v. State of Bihar, 1981(3) SLR 717. 81. Disqualification on Ground of Sex — (i) Disqualification of married women from being eligible for appointment as District Judge on the ground of sex is violative of Article 14. Radha Charan Patnaik v. State of Orissa, 1969 SLR 565: AIR 1969 Ori 237. (ii) Making women ineligible to posts in men”s jails other than those of clerks and matrons is not discriminatory on grounds of sex alone. Mrs. Raghubans Saudagar Singh v. State of Punjab, 1971(1)SLR 688: AIR 1972 Punjab 117. (iii) “We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern”. Miss C.B. Muthamma v. Union of India, AIR 1979 SC 1868: 1980(1) SCR 668: 1979(4) SCC 260: 1979 Lab IC 1307: 1979 SLJ 654; Maya Mukherji Jha v. State of West Bengal, 1982(2) SLR 505. (iv) To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or postnatal period. Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274: 2000(3) SCC 224: 2000(3) JT 13: 2000 Lab IC 1033: 2000(2) SLR 2 (SC). In another case the appointment was denied to a female candidate on the ground that she has a child less than 3 years of age. It was held that such denial is discriminatory as it is for the candidate to make arrangement for the child. Sumitra Singh v. State of Rajasthan, 2002(2) SLR 594 Raj. [Also see Reservation of seats or posts for women]. 82. Age-limit for Appointment to a Post — It is for the Government to make the policy about the appointment to a particular post. If the Government thinks that a person for being appointed as Principal of State Medical College should be between the age of 45 and 50 years it cannot be said that the Government has acted arbitrarily in the making of that policy, because age cannot be deemed to be an irrelevant factor for such a post. Dr. S.S. Misra v. State of U.P., 1974 ALJ 427; Radha Charan Patnaik v. State of Orissa, 1969 SLR 565: AIR 1969 Ori 237.

96


[R.8-9

See also A.P. Public Service Commission v. Satyachandra, 1990(13) ATC 708 (SC); N.T. Devin Kutty v. Karnataka Public Service Commission, 1990(14) ATC 688 (SC). 83. Appointment without Consultation with Public Service Commission not invalid — It is well settled that in respect of the provisions of Article 320 of the Constitution appointment without consultation with the Public Service Commission does not make the appointment invalid or void. State of U.P. v. Manbodhan Lal, 1958 SCJ 150: AIR 1957 SC 912: 1958 SCR 533: 1958(2) LLJ 273; Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: 1969 429: 1970(1) LLJ 367: 1970(1) SCJ 457; Rabindra Nath Mukherjee v. S.R. Das, 1980 SLJ 67; J.M.J.S. Alexandre Gonsalves Pereira v. of Goa, 1982(2) SLJ 132. The recruitment rules made under Article 309 of the constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-ing of the Public Service Commission is permitted, it will open a back door for illegal recruitment without limit. Anuradha Bodi v. Municipal Corporation of Delhi, 1998(5) SCC 293: AIR 1998 SC 2093: 1998(3) JT 757: 1998(4) SLR 359: 1999(1) SLJ 1: 1999(1) LLJ 560: 1998 Lab IC 1911. 84. Appointment, effect of approval by Public Service Commission — Once the Public Service Commission conveys its approval, it dates back to the date of appointment of the officer concerned, it he has continued in the promoted rank from the date of his promotion, without a break. H.P. Sood v. State of Punjab, 1970 Cur LJ 379: 1970 SLR 483. 85. Appointment by authority not competent to make Appointment — If a person is appointed by an authority who is not competent to make appointment, such a person cannot claim the benefit of Article 311 on his removal from service. Narayan Das v. Deputy Commissioner, AIR 1970 Assam 57. The appointment by an authority not competent to make it was invalid and incapable of being validated by subsequent ratification. Ratification can be made by the competent authority only by an independent order which will take effect from the date of order. State of Kerala v. K.P. Krishnan, 1978(1) SLR 331. The appointment was made by the Commandant General even though rule conferred power on the Provincial Government to make such appointments. Therefore, Commandant General had the power to dismiss the appellant. The dismissal order would not be void on the ground that it is made by an authority lower than the appointing authority. Ramanand Singh v. State of Bihar, 1982(1) SCC 214: AIR 1982 SC 1394: 1982(1) SLR 693: 1982 BLJ 395: 1982 BLJR 438: 1982 Pat LJR (SC) 55: 1982(2) SCWR 209: 1982(14) Lawyer 58. See also State Bank of India, Hyderabad v. Ch. Hanumantha Rao, 1988(4) SLR 903 AP. 86. Appointment by higher authority — Appointing authority — Appointment made by higher authority. Order of removal ed by invalid. Chandrasen Sharma v. Superintending Engineer, AIR 1966 All 232; N. Somasundaram v. State of Madras, AIR 1956 Mad 419; Bachubha Ramsinh ji v. Shri Shivlal, AIR 1970 Guj 180.

R.8-9]


97

87. Appointment on Probation or on Officiating Basis is Terminable — The law is well settled now that the appointment either on probation or on officiating basis is from the very nature of such employment itself of a very transitory character and in the absence of any special contract or specific rule regulating the conditions of service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. State of Assam v. Biraja Mohan Deb, 1969(II) SCWR 583; Purshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36; Life Insurance Corporation of India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25. 88. Date of Appointment — Date of appointment means the date of assuming duties of the post and not the date of the order. Amarjit Singh v. State of Punjab, 1969 Cur LJ 918; Raghuvir Lal Sehgal v. Haryana State Electricity Board, 1971(1) SLR 157. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in case of the second kind, the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. Amarjit Singh Ahluwalia v. State of Punjab, AIR 1975 SC 984: 1975(3) SCR 82: 1975(3) SCC 503: 1975 Lab IC 613: 1975 SLJ 220: 1975(1) SLR 171. 89. Appointment with a back date — It is neither in the public interest nor in the interest of justice that an order of appointment be given effect to from a back date, unless concerned employee, as a matter of right, was entitled to be appointed or promoted from that date and the Government was duty bound to do so. Bal Krishan Soni v. State of Haryana, 1982(1) SLR 373. 90. Person not eligible to consideration for appointment cannot question the appointment — In order that mandamus may be issued to compel the authorities to do something it must be shown that the statute imposes a legal duty and the aggrieved party had a legal right under the statute to enforce its performance. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, 1962(2) SCJ 208: 1962(2) Supp SCR 144: AIR 1962 SC 1270. The appellant who was not eligible for consideration for appointment at the time, had no right to question the appointment since he was not aggrieved. Umakant Saran v. State of Bihar, 1973(1) SCC 485: AIR 1973 SC 964: 1973 Lab IC 229:1973(1) SLR 204: 1972(2) LLJ 580: 1973 SLJ 14: 1973(1) SCWR 313. 91. Creation of Post to accommodate a Person — Under the Constitution no post can be created just to accommodate some person howsoever prominent or outstanding he or she may be. If there is a necessity of creating a post and manning it, it should be thrown open to all eligible candidates after prescribing the qualifications which the candidates aspiring to hold that post should possess. Davinder Brar nee

98


[R.8-9

Sandhu v. State of Punjab, 1969 SLR 613; Salim Ahmad Chohan v. Punjab State Electricity Board, 1971(1) SLR 55. Another candidate is appointed in newly created post and the employee of old post is not confirmed. Mahesh Kumar Mudgil v. State of Uttar Pradesh, 1998(1) SCJ 266. 92. Suitability for Appointment — It is the appointing authority who has to be satisfied as to the suitability in respect of age, qualifications, work and character and not the Court. Court cannot take the place of appointing authority. Prafulla Chandra Bhowmik v. Union Territory of Tripura, AIR 1963 Tripura 38. For guidelines followed by Selection Board see Siya Ram v. Union of India, 1998(1) SCJ 260. For no infirmity in selection process see Union of India v. W.S. Chona, 1998(1) SCJ 336. 93. Oral Interview Test — In the matter of public employment, the oral interview test should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that person who are appointed to conduct the oral interview test are men of high integrity, calibre and qualifications. Ajay Hasia v. Khalid Mujib Saharavadi, 1980(3) SLR 467 SC: AIR 1981 SC 487: 1981(2) SCR 79: 1981(1) SCC 722: 1981(2) SLJ 651. See also M.P.P.S.C. v. Navnit Kumar Potdar, 1994(3) Supp SCR 665: 1994(6) SCC 293: AIR 1995 SC 77: 1994(5) SLR 273: 1995(1) SLJ 134: 1994(28) ATC 286: : 1995(1) LLJ 180. The written examination assesses the man”s intellect and the interview tests the man himself and the “the twain shall meet” for a proper selection. If both written examination and interview test are to be essential features of proper selection the question may arise as to the weight to be attached respectively to them. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. Lila Dhar v. State of Rajasthan, 1981(2) SLJ 266 (SC): 1981(3) SLR 56. 94. Verification of Character and Antecedents of Persons Selected for Appointment to Public Posts — Once a fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. If by committing fraud any employment is obtained such a fraudulent practice cannot be permitted to be countenanced by a court of law. Union of India v. M. Bhaskaran, AIR 1996 SC 686: 1995 Supp (4) SCC 100: 1995(5) SLR 796: 1996 SCC(L&S) 162: 1996(32) ATC 94: 1996 Lab IC 581: 1996(1) LLJ 781. A Division Bench of Kerala High Court in George v. State of Kerala, 1963 KLJ 1155 held that it is open to the State to take into the character and antecedents of an applicant before he is appointed to Government service; that in assessing his character and antecedents the State was not to proceed on arbitrary and irrelevant

R.8-9]


99

considerations; and that generally, in this region of assessment the Court should not substitute its own assessment for those of the executive, with which rests the primary duty of appointment. Division Bench of Kerala High Court in State of Kerala v. K.A. Balan, 1979(1) SLR 94, has held that the rule laying down that no person shall be eligible for appointment to any service by direct recruitment unless the State Government is satisfied that his character and antecedents are such as to qualify him for such service does not offend Article 16 or Article 311 or the principles of natural justice. In Kalluri Vassaya v. Superintendent of Post Offices, 1982 Lab IC 1143: 1980(2) SLR the learned single Judge who decided the case looked into the report and held that all the allegations contained in the said report, except the second allegation, are irrelevant and held that having regard to the impact the report has upon the life and career of the petitioner and his fundamental rights, and also because acting upon the said report entails grave and serious consequences to the petitioner, it is but just and fair that the petitioner ought to have been heard with respect to the allegations contained in the said report before acting upon it and before denying him public employment on that basis. He did not agree with Kerala view that petitioner had no right to be heard with respect to the allegations received against him. Services of the petitioner were terminated on the police verification report that he was involved in a criminal case. Held, the order cannot be sustained as the petitioner was not given any notice to terminate his service prior to the impugned order. Even in cases, where there are statutory rules, it is said audi-alteram partem operates. K. Lakshma Reddy v. Director of Postal Services, 1980 SLJ 257: 1982(1) SLR 785. The High Court is not right in holding the order of compulsory retirement as malafide and is in fact an order of punishment. State of Madhya Pradesh v. Indra Sen Jain, 1998(1) SLJ 305. 95. Opportunity of hearing before cancellation of appointment— In the case of selection of an individual if his selection is not found correct in accordance with law, necessarily, a notice is required to be issued and opportunity be given. In a case like mass mal-practice, the question emerges: whether the notice was required to be issued to the persons affected and whether they needed to be heard? In answer to this question the Supreme Court has held that nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, it was further held that the Tribunal was right in not issuing notice to the person who are said to have been selected and given selection and appointment. Biswa Ranjan Sahoo v. Sushanta Kumar Dinda, AIR 1996 SC 2552: 1996(5) SCC 365: 1996(6) JT 515: 1996 SCC(L&S) 1179: 1996 Lab IC 2253: 1996 (3) SLJ 62: 1996 (5) SLR 172: 1996 (2) LLJ 763: 1996 (2) LLN 863: 1996 (74) FLR 2737. 96. Public Employment (Requirements as to Residence) Act, 1957, Section 3 Ultra Vires — The claim for supremacy of Parliament is misconceived. Parliament, in this, as in the other matters, is supreme only in so far as the Constitution makes it. Where the Constitution does not concede supremacy, Parliament must act within its appointed functions and not transgress them. Section 3 of Public Employment

100


[R.8-9

(Requirements as to Residence) Act, 1957, in so far as it relates to Telangana and Rule 3 of the Rules under it are ultra vires the Constitution. A.V.S. Narasimha Rao v. State of A.P., 1970(1) SCJ 365: AIR 1970 SC 422: 1970(1) SCR 115: 1969(1) SCC 839; P. Dharmiah v. Chief Engineer, AIR 1970 AP 236. 97. Forwarding of application to Service Commission — (i) Public Service Commission d certain post. Government can refuse to forward application for a post in another department. T.P. Mahajan v. Union of India, 1973 SLJ 818: 1973(1) SLR 436; Son Pal v. G.M. Northern Rly., 1973(1) SLR 1085. See also Jagmohan Sharma v. State of U.P., 1988(2) SLR 682 All (DB). (ii) Petitioner was temporarily promoted as a Foreman purely as a stop-gap measure. Railway Service Commission d the post of Foreman to be filled up. Petitioner submitted his application through proper channel. His application was forwarded to the Commission after last date for submission of application. Commission did not allow petitioner to sit in the examination. Commission formed and recommended the name of person to fill up the post. istration commanded to forbear from giving effect to the with liberty to proceed in accordance with law for fresh recruitment to the said post. Narayan Fakirsa Javre v. Union of India, 1979(1) SLR 175. For other view see Rangaswamy v. Kerala Public Service Commission, 1982(2) SLR 478: 1982 Lab IC 1684. 98. Transfer from one department to another — If a person is a member of the service and he is transferred from one department to another it is not necessary that he should be reappointed to the service or he should be appointed to the department to which he is transferred. As soon as he is transferred permanently he begins to hold the permanent post which he starts holding in the transferred department. State of U.P. v. Ram Naresh Lal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 SLR 819: 1970 Lab IC 1063. 99. Provisions of rule 9(2) are not repugnant to the definition of appointing authority in Rule 2(a) — Om Prakash Gupta Swadheen v. Union of India, AIR 1975 SC 1265: 1976(1) SCC 594: 1975 SLJ 675: 1975 Lab IC 813: 1975(2) SLR 226.

101

SUSPENSION

R.10]

PART IV

SUSPENSION R.10

10. (1) Suspension — (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President by general or special order, may place a Government servant under suspension — (a)

where a disciplinary proceeding contemplated or is pending; or

against

him

is

(aa)

where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

(b)

where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

Provided that, except in case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and s Service and in regard to an Assistant ant-General or equivalent (other than a regular member of the Indian Audit and s Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. (2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority — (a)

with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

(b)

with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

102


[R.10

Explanation — The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into . (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders : Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has ed an order purely on technical grounds without going into the merits of the case. (5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b)

Where a Government servant is suspended or is deemed to have been suspended, (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the

SUSPENSION

R.10]

103

Government servant shall continue to be under suspension until the termination of all or any of such proceedings. (c)

An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.

COMMENTARY SYNOPSIS 1. Suspension, general principle explained .......................................................................... 105 2. Suspension, kinds of ......................................................................................................... 107 3. Form of order .................................................................................................................... 107 4. Effect of Suspension ........................................................................................................ 107 5. “Suspension” and “put off”, distinction between ............................................................ 107 6. When a Government servant may be suspended or deemed to have been suspended ..... 107 7. Suspension before charges have been framed ................................................................. 108 8. Not obligatory to suspend ................................................................................................ 109 9. Suspension pending final order ........................................................................................ 109 10. Suspension pending conclusion of enquiry and refusal to permit to retire ...................... 109 11. Suspension as long as criminal trial in progress .............................................................. 109 12. Suspension pending preliminary enquiry… .................................................................... 109 13. Preliminary enquiry cannot be equated to an investigation ............................................ 109 14. Power of suspension to be sparingly exercised ............................................................... 110 15. Who can suspend a Government servant ........................................................................ 110 16. Inherent powers of suspension ....................................................................................... 110 17. Publication of regulation empowering the suspension .................................................... 111 18. Authority competent to appoint or dismiss is entitled to suspend .................................. 111 19. Delegation of power suspend .......................................................................................... 111 20. Suspension by authority other than appointing authority ............................................... 112 21. Power of head of office to suspend ................................................................................ 112 22. Suspension order to show why it has been ed .......................................................... 112 23. Suspension cannot be for indefinite period .................................................................... 112 24. Suspension under political pressure ............................................................................... 113 25. Suspension with retrospective effect .............................................................................. 113

104


[R.10

26. Suspension is not reduction in rank ................................................................................ 113 27. Suspension no punishment ............................................................................................. 113 28. Suspension not temporary removal from service ........................................................... 114 29. Suspension order becomes effective when sent out ........................................................ 114 30. Suspension and termination of service without enquiry ................................................. 114 31. Suspension after cancelling leave preparatory to retirement .......................................... 114 32. Suspension during arrest ................................................................................................. 114 33. (i) Suspension under the sub-rule (1) when ceases .......................................................... 114 (ii) Period of suspension ................................................................................................. 115 (iii) Suspension under sub-rule (1) (b) whether ends with acquittal or discharge in criminal case ................................................................................................................. 115 34. Suspension under sub-rule (2)(a) when ceases ............................................................... 115 35. Suspension of employee on deputation: By lending Government ............................................................................ 116 By borrowing Government ........................................................................ 116 36. Suspension of delinquent in custody .............................................................................. 117 37. Suspension of a Government servant under U.P. Rules ................................................ 117 38. Suspension of a Government Servant under Orissa Rules............................................... 117 39. Suspension order under review (revision) proceedings .................................................. 118 40. Suspension, charge-sheet and enquiry not to be unduly delayed .................................... 118 41. Order of suspension ed under misapprehension which was revoked — Of no consequences to mar career .......................................................................... 118 Leave while under suspension ............................................................................... 118 Lien while under suspension ................................................................................. 119 42. Promotion pending disciplinary proceedings .................................................................. 119 43. Compulsory retirement during the period of suspension ................................................ 119 44. Sub-rule (3), application of ............................................................................................ 119 45. Sub-rule (4), interpretation of ......................................................................................... 119 46. Sub-rule (4), application of ............................................................................................. 119 47. Conditions to be satisfied to attract sub-rule (4) ............................................................. 120 48. Sub-rule (5)(a), operation of ........................................................................................... 121 49. Two conditions must co-exist before action can be taken under sub-rule (5) (b) ........... 121 50. Suspension ends on dismissal, cannot be continued under sub-rule (5) (b) .................... 121 51. Suspension does not revive, if termination is quashed ................................................... 121 52. Direction to suspended employee to attend office daily and mark attendance ............... 121 53. Judicial review of suspension .......................................................................................... 122 54. Restraint on suspension by temporary injunction ............................................................ 122

R.10]

SUSPENSION

105

SUBSI STENCE ALLOWA NCE, PAY MENT OF PAY AND A LLOWA NCE

55. Subsistence allowance issible on suspension ........................................................... 122 56. Payment during suspension ............................................................................................ 123 57. Denial due to delay in proceedings ................................................................................. 123 58. Denial due to conviction ................................................................................................. 124 59. Denial under standing orders ........................................................................................... 124 60. Natural justice ................................................................................................................. 124 61. Order of dismissal set aside for non-payment of subsistence allowance ........................ 124 62. Pay and allowances on acquittal or discharge in criminal case ...................................... 125 63. Concept of “honourable acquittal” or “full exoneration” ............................................... 125 64. Order for withholding pay be ed after giving opportunity ....................................... 126 65. Speaking order to be ed ........................................................................................... 126 66. Pay of suspension period on termination of services of temporary Government servant 126 67. Limitation to claim pay of suspension, period when starts ............................................. 127 68. Suspension order, communication of ............................................................................. 127 69. Enquiry resulting in minor penalty .................................................................................. 127 70. Reinstated allegations having not been proved. Period of suspension to be treated as on duty ....................................................................................................................................... 127

1. Suspension, General Principle Explained — When an order of suspension is made against a Government servant pending an enquiry into his conduct, the relationship of master and servant does not come to an end. What the Government, as master, does in such a case is merely to suspend the Government servant from performing the duties of his office. The Government issues a direction forbidding the Government servant from doing the work which he was required to do under the of the contract of service or the statute or rules governing his conditions of service at the same time keeping in force the relationship of master and servant. “The employer is regarded as issuing an order to the employee because the contract is subsisting, the employee must obey”. It follows that the Government servant would be entitled to his remuneration for the period of suspension unless there is some provision in the statute or rules governing his conditions of service which provide for withholding of such remuneration. V.P.Gindroniya v. State of M.P., AIR 1970 SC 1494: 1970(1) SCC 362: (1970) 2 SCJ 573: 1970 SLR 329: T. Cajee v. U. Jormanik Siem, (1961) 1 SCR 750: AIR 1961 SC 276; Balwantray Rati Lal Patel v. State of Maharashtra, AIR 1968 SC 800: 1968(2) SCR 577: 1968 SLR 593: (1968) 2 SCJ 540: (1968) 1 SCWR 964: H.L.Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: (1974) II SCWR 302: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396; State of M.P. v. State of Maharashtra, (1977) 2 SCJ 20: AIR 1977 SC 1466: 1977(2) SCR 555: 1977(2) SCC

106


[R.10

288: 1977 Lab IC 697: 1977 (1) SLR 433. See also R.K. Mehta v. Union of India, 1993 (6) SLR 258 (CAT: New Delhi); Director, BCG Vaccine Laboratory, Madras v. S. Pandian, 1996 (8) SLR 168 (SC): 1997(11) SCC 346: 1996(2) LLJ 634: 1996(1) LLN 799. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of “Subsistence Allowance”, so that the employee may sustain himself. M. Paul Anthony (Captain) v. Bharat Gold Mines Ltd., AIR 1999 SC 1416: 1999(3) SCC 679: 1999(2) JT 456: 1999(2) KLT 17(2): 1999(2) SLR 338 (SC): 1999 Lab IC 1565: 1999(2) LLN 640: 1999(82) FLR 627: 1999(95) FJR 1: 1999(2) SCJ 358: 1999(3) SLJ 152. An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. O.P. Gupta v. Union of India, 1987(4) SCC 328: 1987(5) SLR 288 (SC). The suspended employee continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance generally called subsistence allowance -which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. Khem Chand v. Union of India, 1958 SCR 1080: AIR 1958 SC 300 The investigation mentioned in rule 10(1)(b) CCS (CC&A) Rules, 1965 means investigation into a criminal case. Ram Kanwar v. Union of India, (1988) 7 SLR 363 (CAT Delhi). The employee is convicted in the criminal charge and later on he was acquitted. The suspension is held by court as unjustified. The court ordered for full pay and allowances for the period of suspension R.K. Mehta v. Union of India, 1993 (6) SLR 258 (CAT New Delhi). During the period of suspension a Government servant cannot be asked to render any service or perform any duty. Chittaranjan Ghose v. IGP, W.B., 1979 (2) SLR 194; Zonal Manager, Food Corporation of India v. Khaleel Ahmed Siddiqui, 1982 Lab IC 1140: 1982 (2) SLJ 166: 1982 (2) SLR 779. The appellant postman was suspended for delivering the ed letter to another person other than addressee. The charge sheet is not filed within three months and the review of suspension is not done within six months, which should be done as per Govt. instructions. For these reasons the continued suspension is not held illegal. G. Yousoof v. Assistant Superintendent of Post Offices, 1994 (8) SLR 415 (CAT Mad.). Rule 10(1)(a) of the Central Rules empowers the appointing authority to place a Government servant under suspension if inquiry is either being conducted against him or is contemplated against him. In the present case, a disciplinary authority had decided to initiate the disciplinary proceeding against the respondent and pursuant to the said decision and in exercise of the power vested in him by Rule 10(1)(a) of the Central Rules, the respondent was kept under suspension. Therefore, the concerned authority was well within its statutory power to keep the respondent under suspension and, the High Court was held to be in error in finding fault with the said decision on the ground that there was no need to keep the respondent under suspension when he is undergoing

SUSPENSION

R.10]

107

a sentence of imprisonment. Union of India v. Sunil Kumar Sarkar, AIR 2001 SC 1092: 2001(3) SCC 414: 2001(Supp 1) JT 193: 2001(1) SLR 271 (SC): 2001 Lab IC 1114: 2001 AIR SCW 957: 2001(2) Raj LW 180: 2001 SCC (L&S) 600. 2. Suspension, Kinds of — Three kinds of suspension are known to law. A Public servant may be suspended as a mode of punishment or he may be suspended during the pendency of an enquiry against him, if order appointing him or statutory provisions governing his service provide for such suspension. Lastly, he may merely be forbidden from discharging his duties during the pendency of an enquiry against him, which act is also called suspension. V.P. Gindroniya v. State of Madhya Pradesh, (1970) 2 SCJ 573: (1970) I SCWR 294: 1970 SLR 329: AIR 1970 SC 1494: 1970(3) SCR 448: 1970(1) SCC 362; see also D.D.Suri v. Government of India, 1973 SLJ 468: 1973 (1) SLR 668. 3. Form of order — Suspension order need not disclose that any disciplinary proceedings were contemplated or were pending or any criminal offence was under investigation. It would be sufficient if the competent Authority records in its proceedings that the conditions mentioned in Regulation concerned were in existence. Therefore non-mentioning that any disciplinary proceedings contemplated or were pending against or any criminal case was under investigation, inquiry or trial is not fatal. Punjab National Bank v. D.M. Amarnath, 2000(10) SCC 162: 2000(2) LLJ 256: 2000(86) FLR 640 4. Effect of Suspension — Once the employee is placed under suspension, the Management cannot take any work from the suspended employee nor can the employee claim full salary from the Management. But the Management has to pay the Subsistence Allowance to the employee so that he may sustain himself. Ram Lakhan v. Presiding Officer, AIR 2000 SC 1946: 2000(10) SCC 201: 1999(10) JT 466: 2000(2) CLT 311(SC): 2000 Lab IC 1371: 2000(2) SLR 177 (SC); followed in Ranjit Singh v. Presiding Officer, 2003 (1) SLR 366 (P&H). 5. “Suspension” and “Put Off”, Distinction Between — The 1965 Rules do not contemplate a put off and the Extra Departmental Branch Post Master E.D.A. (Conduct and Service) Rules do not contemplate an act of suspension. Whether an action is called suspension or put off, it has the effect of preventing the incumbent from attending his duties and drawing regularly perquisites due to him. The principles of law governing suspension should be applied to the action of put off. K.Sardamma v. Superintendent of Post Offices, 1982 (2) SLJ 156. 6. When a Government Servant May Be Suspended or Deemed to have been Suspended — (1) A Government servant may be placed under suspension:— (i)

where a disciplinary proceeding against him is contemplated or is pending; or

(ii)

where he has engaged himself in activities prejudicial to the interest of the security of the State; or

(iii)

where a criminal case against him is under investigation, inquiry or trial.

108


[R.10

(2) A Government servant shall be deemed to have been suspended:— (i)

if he is detained in custody for a period exceeding 48 hours, from the date of his detention;

(ii)

if he is sentenced to a term of imprisonment exceeding fortyeight hours, for his conviction of an offence, and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction, from the date of conviction.

7. Suspension Before Charges have been Framed — (i) Clause (1) (a) provides that a disciplinary authority may place a Government servant under suspension where disciplinary proceeding against him is contemplated or is pending. It is the exigency of the conditions of service which requires or calls for an order of suspension. Whether it is necessary or desirable to place the officer under suspension before definite charges have been framed would depend on the circumstances of the case and the view which is taken by the disciplinary authority. G. Prahlad v. State of Karnataka, 1980 (2) SLR 461; Prakash Chandra v. High Court of Judicature for Rajasthan, 1982 (2) SLR 261. Suspension pending investigation inquiry or trial is interim in nature. It is not required to be ed only because it will be lawful to do so. An application of mind on the part of the competent authority is sina qua non for ing such order of suspension. Therefore, it is expected that the appropriate authority shall not only take into consideration the public interest but shall also take into consideration the relevant facts and attendant circumstances as to how far and to what extent the public interest may suffer if the delinquent officer is not placed under suspension. P. Rajender v. Union of India, 2001(3) SLR 740 AP (DB). (ii) Meaning of “Offence” in Sub-rule 2 (b) — The word “offence” as referred to in rule 10(2) (b) read with section 3 (38) of the General Clauses Act means any act or omission made punishable by any Indian Law for the time being in force. If any act of omission which is not punishable under any Indian Law, it will not be an offence, although such an act or omission may be an offence under the law of foreign country. Union of India v. Susanta Kumar Mukherjee, 1977 (1) SLR 334 (Cal). See also R.K. Mehta v. Union of India, 1993 (6) SLR 258 (CAT New Delhi); Animesh Sengupta v. Union of India, 1994 (2) SLR 139 (CAT Calcutta) (FB); Yadvinder Singh v. Union of India, 1996 (5) SLR 300 (P&H) (DB). (iii) Suspension for Conviction for an Offence by a Foreign Court Under a Foreign Law — The conviction of a Government servant by a court beyond the territory of India is not contemplated by rule 10(2)(b) and cannot be taken notice as a ground for his suspension or for his removal, dismissal or retirement from service. He may, however, be put under suspension under rule 10(1)(a) in contemplation of a disciplinary proceeding. Union of India v. Susanta Kumar Mukherjee, 1977 (1) SLR 334 (Cal). (iv) Suspension for criminal charge — The appellant is convicted for criminal charge and is suspended and in between he was released on bail. The rule 10(2)(b) states that if a Govt. servant is convicted for criminal case for more than forty eight

R.10]

SUSPENSION

109

hours in Jail then he is deemed to have been placed under suspension. Animesh Sengupta v. Union of India, 1994 (2) SLR 139 (CAT Calcutta) (FB). But continuation of suspension even after the employee is acquitted is unjust as the suspension can not be continued for an indefinite period of time. Balwant v. Union of India, 2003 (3) SLR 443 (HP) (DB). 8. Not Obligatory to Suspend — It is not obligatory on the disciplinary authority to suspend a person even though a departmental enquiry has been instituted against him. D. Srinivasa Iyer v. Mysore State, 1971 Lab. IC 937: 1971 (1) SLR 202. 9. Suspension Pending Final Order — High Court holding enquiry against subordinate judicial officer. Ordering his suspension pending final order of Government. Order is valid. Mohammad Ghouse v. State of Andhra, 1957 SCJ 225: AIR 1957 SC 246: 1957 SCR 414. See also Director, BCG Vacine Laboratory, Madras v. S. Pandian, 1996 (8) SLR 168 (SC); V.D. Trivedi v. Union of India, (1989) 7 SLR 61 (CAT New Delhi); S.V.T. Educational Institution v. A. Raghupathy Bhat, 1997 (1) SLR 713 (SC). 10. Suspension Pending Conclusion of Enquiry and Refusal to Permit to Retire — There can be no doubt that, if disciplinary action is sought to be taken against a Government servant it must be done before he retires. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is ed therein. State of Punjab v. Khemi Ram, (1969) II SCWR 718: AIR 1970 SC 214: (1971) 1 SCJ 263. 11. Suspension as Long as Criminal Trial in Progress — The petitioner was under-trial before the Magistrate in connection with alleged commission by him of offences under sections 409/109 and the trial was in progress. Held, there was no illegality in placing the Petitioner under suspension as long as the trial was in progress. Birendra Nath Mukherjee v. State of West Bengal, AIR 1973 Cal. 94. See also Chairman & Managing Director, Punjab National Bank v. Dilip Kumar, (1988) 1 SLR 171 (Cal), see contra Balwant v. Union of India, 2003 (3) SLR 443 (H.P.) (DB). 12. Suspension pending preliminary enquiry — A Government servant can be placed under suspension by the competent authority after objective consideration of the allegations, the material available and the telling circumstances requiring suspension in public interest even without a preliminary enquiry. If a preliminary enquiry has been ordered simultaneously with the order of suspension, it shall not stand vitiated, and in all the cases it is not necessary for the competent authority to wait for the result of preliminary enquiry. Constable Yad Ali v. Superintendent of Police, Chandauli, 2001(4) SLR 544 All. 13. Preliminary Enquiry Cannot be Equated to an Investigation — A preliminary enquiry cannot justify the ing of an order of suspension under Rule 10 (1) (b). R.K. Gupta v. Union of India, 1971 (1) SLR 477 (Delhi).

110


[R.10

14. Power of Suspension to be Sparingly Exercised — Although suspension is not one of the punishments narrated in Rule 11, an order of suspension is not to be lightly ed against the Government servant for the reality cannot be ignored that the suspension brings to bear on the Government servant consequences more serious in nature than several of the penalties made, mentioned in Rule 11. It has a disastrous impact on the fair name and good reputation that may have been earned and built up by a Government servant in the course of many years of service. Hence it is imperative that the utmost caution and circumspection should be exercised in ing orders of suspension. Subramoniam v. State of Kerala, 1973 (1) SLR 521. See also Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New Delhi). An order of suspension should not be too hastily ed. It has more serious consequences than some of the penalties. Nikka Ram Sharma v. Central Social Welfare Board, (1990) 4 SLR 407 (HP) (DB). K.P. Velayudhan v. State of Kerala, (1997) 2 SLR 111 (Ker). An application of mind on the part of the competent authority is sina qua non for ing such order of suspension. Therefore, it is expected that the appropriate authority shall not only take into consideration the public interest but shall also take into consideration the relevant facts and attendant circumstances as to how far and to what extent the public interest may suffer if the delinquent officer is not placed under suspension. P. Rajender v. Union of India, 2001(3) SLR 740 AP (DB). An order of suspension ed due to pendency of criminal case without considering that the employee had not benefited from the action subject matter of criminal proceedings and that he was witness for the department against the other employees in respect of same subject matter during the course of departmental proceedings. It was held that the order of suspension suffered from the vice of nonapplication of mind and therefore was struck down. Guman Singh Barath v. State of Rajasthan, 2003 (1) SLR 146 (Raj.) 15. Who can Suspend a Government Servant — The following authorities are competent to place a Government servant under suspension — (i)

the Appointing Authority,

(ii)

any authority to which Appointing Authority is sub-ordinate,

(iii)

the Disciplinary Authority, and

(iv)

any authority empowered in that behalf by the President.

16. Inherent Powers of Suspension — The employer has got right to suspend an employee even if it is not provided in the rules since the order of suspension is not a punishment when the order of suspension was issued in contemplation of a departmental proceeding or on initiation for a disciplinary proceeding. The executive authorities even acting as disciplinary authority may be expected to act as quasi judiciary body. But it cannot be expected to act like a judicial officer and as such only for the of the word “major” against misconduct in the suspension order does not make the order invalid in the eye of law. Sukhendu Bikash Tikader v. Chairman, Nadia Gramin Bank, 2002(2) SLR 459 Cal.

R.10]

SUSPENSION

111

It is by virtue of inherent powers vested in an employer that he can suspend his employee. It is not essential that a departmental enquiry must either be initiated or actually be pending at the time when the order of suspension is made. Malvinderjit Singh v. State of Punjab, 1968 SLR 816 (LPA filed. Questions referred to Full Bench see 1970 SLR 646 and 1970 SLR 660); Partap Singh v. State of Punjab, AIR 1964 SC 72. See also K.P. Velayudhan v. State of Kerala, 1997 (2) SLR 111 (Ker). 17. Publication of Regulations empowering the suspension — Regulation of statutory Corporation claimed to have not come into force on of the nonpublication in Gazette. No such requirement of prior publication of regulation in official gazette in the Act establishing Corporation and therefore held that, absence of publication does not render Regulations unenforceable. S .Mahipal Reddy v. Secretary, Labour Dept., Govt. of A.P., Hyderabad, 1999(3) SLR 358 AP (DB). 18. Authority Competent to Appoint or Dismiss is Entitled to Suspend — The authority competent to appoint or dismiss a person is entitled to suspend him even though an express power of suspension is not given by any specific rule. Union of India v. Baij Nath, 1972 SLR 382 (Delhi). Ramesh Chand Saini v. Haryana Urban Development Authority, (1996) 5 SLR 15 (P&H); S.L. Das v. State of Bihar, (1984) 1 SLR 241 (Pat) (DB). Under A.P. Bank Officers, Employees (Discipline and Appeal) Regulation, 1981 a distinction had been made between the disciplinary authority who can impose a punishment on the delinquent officer and the competent authority under Regulation 12 who can place him under suspension. Therefore it was held that the Assistant General Manager, though the disciplinary authority in respect of the respondent, could not be regarded as the competent authority who could the order of suspension under Regulation 12. Chairman and Managing Director, Andhra Bank v. Ramoo Ramesh, 1997(11) SCC 610 . 19. Delegation of power to suspend — Rule 12 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 provides that the Appointing Authority or any authority empowered by the Governor may place a Government servant under suspension where a disciplinary proceeding against such a government servant is in contemplation or where a case against such a Government servant in respect of any criminal offence is under investigation of trial. By an order dated 6.2.1987, the Governor of Orissa in exercise of power under sub-rule (1) Rule 12 of the Rules empowered the Collector of the District in connection with the affairs of the Community Development. Subsequently, the Governor has also empowered the Collector of the District to suspend a government servant working in connection with the affairs of the Community Development. Subsequently, the inflict minor punishment on the government servants working with the affairs of the community development. It was held that merely because the Governor subsequently has empowered the Collector of the District to also inflict minor punishment, it does not mean that by such delegation the Governor is denuded of his power to delegate power of suspension on the Collector. Once the Collector was empowered by the Governor to suspend a Government servant working in connection with the affairs of the community development, the said power continued to be exercisable by the Collector even

112


[R.10

delegation of power on the Collector to impose minor punishment. State of Orissa v. Baidhar Sahu, AIR 2000 SC 1683: 2000(4) SCC 475: 2000(5) JT 499: 2000 Lab IC 1846: 2000(4) SLR 355 (SC). The competent authority to suspend an officer is appointing authority or any subordinate authority on whom the power of disciplinary authority has been conferred by the Governor by general or special order. When the Commissioner has been delegated the powers of the Governor under the Rules, the Commissioner is empowered in that behalf to take the appropriate action including power to suspend Naib Tehsilder. Held that suspension order by such delegate is valid. A.K. Jadhav v. State of Madhya Pradesh, 1997(9) SCC 240: AIR 1997 SC 2394: 1997(4) JT 583: 1997(2) SLR 804: 1997(76) FLR 266: 1997(2) SCJ 125: 1997 Lab IC 2339. Under A.P. Bank Officers, Employees (Discipline and Appeal) Regulation, 1981 a distinction had been made between the disciplinary authority who can impose a punishment on the delinquent officer and the competent authority under Regulation 12 who can place him under suspension. Therefore it was held that the Assistant General Manager, though the disciplinary authority in respect of the respondent, could not be regarded as the competent authority who could the order of suspension under Regulation 12. Chairman and Managing Director, Andhra Bank v. Ramoo Ramesh, 1997(11) SCC 610 . 20. Suspension by Authority Other Than Appointing Authority — Where the rules provide that the authority which is not the appointing authority may order suspension pending enquiry, the authority, can order of suspension. Mohammad Ghouse v. State of Andhra, 1957 SCJ 225: AIR 1957 SC 246: 1957 SCR 414; See also A.K. Jadhav v. State of Madhya Pradesh, 1997(9) SCC 240: AIR 1997 SC 2394: 1997(4) JT 583: 1997(2) SLR 804: 1997(76) FLR 266: 1997(2) SCJ 125: 1997 Lab IC 2339. 21. Power of Head of Office to Suspend — Regional Manager who is head of office is competent to suspend a driver of Himachal Government Transport. S.R.O. 608, dated 28.2.1957 issued by President read with notification dated 30.1.1962. Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269. 22. Suspension Order to Show Why it has been ed — Suspension order did not state that it was a prelude to the institution of any disciplinary proceeding. Order quashed. Channamallappa Kallappa v. S.M. Kegur, 1969 SLR 882 (Mysore). 23. Suspension cannot be for Indefinite Period — Executive cannot be vested with a total arbitrary and unfettered power of placing its officers under disability and distress, for an indefinite duration. State of Madras v. K.A. Joseph, 1969 SLR 691: AIR 1970 Madras 155. Where the suspension was kept alive for a period of eight years and vigilance proceedings were kept alive for a long period without any excuse. Order of suspension and disciplinary proceedings were quashed. [Manasaranjan Das v. State of Orissa, 1973 (2) SLR 553.] The petitioner was suspended in 1964, F.I.R. against him was lodged in 1969. So far criminal case had not taken any shape and no charge-sheet was

R.10]

SUSPENSION

113

filed. Suspension order was quashed. Madhusudan Bhusan v. State of Orissa, 1975 Lab IC 11. Allegation of supervisor”s negligence against the employee and he was placed under suspension but no charge-sheet issued for two years. Held that an employee cannot be suspended for an indefinite period and therefore, suspension order directed to revoked forthwith. Beni Ram Kushwaha v. State of Rajasthan, 2002(2) SLR 550 Raj (DB). Ordinarily it is for the employer to decide the matter relating to the suspension of an officer and the Courts are slow in interfering with such matters, but again it all depends on the facts and circumstances of each case which are required to be examined to determine whether continuation of suspension would be arbitrary or not. Considering the fact that the appellants had been under suspension for so many years and no progress has been made in the criminal cases, It was held that the continuance of their suspension, was clearly arbitrary and unjustified. K.K. Bhardwaj v. Delhi Vidyut Board, 1999(2) SLR 681 Delhi (DB). 24. Suspension Under Political Pressure — The power of suspension whether inherent or statutory must be exercised by the repository of the power and that the exercise of the power must be the free and voluntary act of authority vested with the power. Suspension order ed under political pressure set aside. C.E. Ernimose v. State of Kerala, 1970 SLJ 520. Due to the Assembly question and due to authorities taking notice of holding of the condolence meeting in which the petitioner was alleged to have discussed regarding the dissolution of the State Assembly, based upon the report and information from different quarters, the impugned order cannot be set aside as the same was based upon the enquiry report and the statutory authorities had applied their mind. Ramdhyan Singh v. State of Bihar, 1979 (3) SLR 369. 25. Suspension with Retrospective Effect — Order of suspension should not be given retrospective effect. Such order is illegal. Lekh Ram Sharma v. State of M.P., AIR 1959 MP 404; Satkari Chatterji v. Commissioner of Police, AIR 1965 Cal 13; Nepal Chandra v. District Magistrate, AIR 1966 Cal 485; R Jeevaratnam v. State of Madras, 1967 SLR 657: (1966) II SCWR 464: (1967) 1 SCJ 404: AIR 1966 SC 951; Braja Kishore Moharana v. Principal, Ravenshaw College, 1973 SLJ 366; Sisir Kumar Chattopadhya v. State of West Bengal, 1973 (2) SLR 277; Narayana Misra v. State of Orissa, 1982 (2) SLR 506; R.K. Mehta v. Union of India, 1993 (6) SLR 258 (CAT New Delhi; Basant Ram Jaiswal v. Area Manager (North) Mahanagar Telephone Nigam Ltd., Bombay Telephones, 1993 (6) SLR 639 (CAT Bombay). 26. Suspension is not Reduction in Rank — Order of suspension does not amount to reduction in rank, Article 311 has no application. Pratap Singh v. State of Punjab, AIR 1963 Punjab 298; Prem Singh v. State of Punjab, 1968 Cur. LJ 247; Brahmanand Satpathy v. State of Orissa, AIR 1969 Orissa 224 27. Suspension no Punishment — Suspension of an officer pending a disciplinary proceeding is not a punishment. Niranjan Misra v. State of Orissa, 1982 (2) SLR 106.

114


[R.10

28. Suspension not Temporary Removal from Service — Suspension pending or in contemplation of a disciplinary proceeding, does not amount to temporary removal from service Mohammad Ghouse v. State of Andhra, AIR 1957 SC 246: 1957 SCJ 225; Registrar of the Orissa High Court v. Barada Kanta Misra, AIR 1973 Orissa 244: 1974 (1) SLR 90. 29. Suspension Order Becomes Effective When Sent Out — Order of suspension made before date of respondent”s retirement but was received by him after the date of retirement. Order becomes effective when it is issued and actually sent out. State of Punjab v. Khemi Ram, (1969) II SCWR 718: (1971) 1 SCJ 263: AIR 1970 SC 214: 1970(2) SCR 657: 1969(3) SCC 28; Umashankar Chatterjee v. Union of India, 1982 (2) SLJ 368: 1982 (2) SLR 724: 1982 Lab IC 1361. 30. Suspension and Termination of Service Without Enquiry — If a Government servant is suspended and his services are terminated without holding any enquiry against him, such termination would amount to a punishment which will attract the provisions of Art. 311 of the Constitution. Union of India v. Gian Singh Kadian, 1970 DLT 293: AIR 1970 Delhi 185: 1976 SLR 563. 31. Suspension After Cancelling Leave: Preparatory to Retirement — Government can, after cancelling leave preparatory to retirement granted to a civil servant, suspend him and hold departmental enquiry against him. S.Pratap Singh v. State of Punjab, AIR 1964 SC 72: 1964 (4) SCR 733: 1966(1) LLJ 458. 32. Suspension during arrest — Rule 10(1)(a) of the Central Rules empowers the appointing authority to place a Government servant under suspension if an inquiry is either being conducted against him or is contemplated against him. Where a disciplinary authority had decided to initiate the disciplinary proceeding and pursuant to the said decision and in exercise of the power vested by Rule 10(1)(a) of the Central Rules, the employee, though in custody, could be placed under suspension. Union of India v. Sunil Kumar Sarkar, AIR 2001 SC 1092: 2001(3) SCC 414. A legal fiction was introduced under sub-regulation (2) of Regulation 18 of Andhra Pradesh State Road Transport Corporation Employees (CCA) Regulations, 1967 that if an employee of the Corporation is arrested and detained in custody for a period exceeding 48 hours, he should be deemed to have been suspended with effect from the date of detention and so introducing a legal fiction, the said regulation provides that such deemed suspension would be in operation until further orders. it was held that the sub-regulation does not deal with nor refer to any conduct of the employee which may amount to misconduct. G. Mutyalu v. Managing Director, APSRTC, Hyderabad, 1999(1) SLR 255 AP. 33. (i) Suspension Under Sub-rule (1) When Ceases — Suspension under clause (a) would cease to exist when the proceeding is abandoned or is completed, as the case may be. Suspension under clause (b) would cease to exist when the investigation is finally abandoned or the proceedings is concluded. If suspension is under both the clauses it would remain in force until both the proceedings are finally terminated. S. Gopalan Nair v. State of Kerala, AIR 1970 Kerala 70.

R.10]

SUSPENSION

115

The position of law can be said to be settled that, if an employee is only suspended because of a criminal charge pending investigation and trial, then, if such Government servant is ultimately acquitted, then the order of suspension will cease to an end. In case, thereafter, if the disciplinary authority thinks that a departmental enquiry under the rules is still necessary against the Government servant for his alleged misconduct then fresh orders of suspension are to be ed. Anyhow, as both the prosecution and departmental enquiry can take place simultaneously, if Government servant is suspended on both the counts, that disciplinary proceeding is contemplated or is pending and a case against him in respect of any criminal offence, is under investigation or trial, then the suspension order will not come to an end on mere acquittal and will subsist till the Government servant is exonerated in the departmental enquiry also. Sunder Lal v. State of Rajasthan, 1980 (3) SLR 220. (ii) Period of suspension— An unduly narrow technical view had been taken by the Tribunal to quash the order of suspension. The view of the Tribunal that the expression “investigation, inquiry or trial” would not include the stage of filing of the charge-sheet in the Court and since investigation was over and the trial had not yet commenced, the respondent could not be placed under suspension. It was held by Supreme Court that the delinquent cannot be considered to be any better off after the charge-sheet had been filed against him in the Court after completion of the investigation, than his position during the investigation of the case itself. It was brought to the notice of Supreme Court that sanction for prosecution had already been obtained and case had been fixed for framing of charges by the trial Court. In this view of the matter it was held that the view taken by the Tribunal in the impugned order was not sustainable and the order of suspension was not liable to be quashed on the ground that the case was neither at the stage of investigation nor enquiry nor trial. Union of India v. Udai Narain, 1998(5) SCC 535. (iii) Suspension Under Sub-rule (1)(b), Whether Ends with Acquittal or Discharge in Criminal Case — When a delinquent is suspended in consequence of criminal proceedings against him, on acquittal or discharge he is deemed to be reinstated. Jatindra Nath v. State of West Bengal, AIR 1969 Cal 461. In Narayan Prasad Rawany v. State of Orissa, AIR 1957 Orissa 51, the order of suspension did not say that the suspension was pending for further orders and hence it was held that the order ceased to be operative as soon as criminal proceedings had terminated. In Balwantaray Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800: 1968(2) SCR 577: (1968) I SCWR 964: (1968) 2 SCJ 540: 1968 SLR 593, the order of suspension recited that the appellant should be suspended with immediate effect “pending further orders”. The Supreme Court held that the order of suspension does not come to end on the date the appellant was acquitted. The order of suspension could not be automatically terminated but it could have only been terminated by another order of Government. 34. Suspension Under Sub-rule (2)(a) When Ceases — Sub rule (2) (a) provides that a Government servant who is detained in custody whether on a criminal charge or otherwise for a period longer than 48 hours shall be deemed to have been suspended by the appointing authority with effect from the date of his detention. Sub-rule (5) provides:—

116


[R.10

(a)

An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.

(b)

Where a Government servant is suspended or is deemed to have been suspended, (whether in connection with any disciplinary proceeding or otherwise), and any disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.

(c)

An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or deemed to have made the order or by any authority to which that authority is subordinate.

In Abdul Rashid Khan v. Director, Library Research, 1977 SLJ 574: 1977 (2) SLR 666, a case under J. & K. (C.C.A.) Rules, it was held that as soon as the trial has concluded and the Government servant has been acquitted, the result would be that as there is no longer any criminal case pending against him and also that the competent authority has not proposed to embark upon any departmental enquiry against him, he is entitled to be reinstated and mere filing of appeal would not stand in the way of his reinstatement. The disciplinary authority was directed to reinstate him retrospectively from the date he was acquitted. The Calcutta High Court in Mihir Kumar Das v. State of West Bengal, 1980 (1) SLR 678, a case under Rule 7(3) of West Bengal Services (C.C.A.) Rules held that the suspension does not stand revoked as soon as the Government servant is released from custody or acquitted of the criminal charge. See also Yadvinder Singh v. Union of India, 1996 (5) SLR 300 (P&H) (DB). In view of the above decisions and the provisions contained in sub-rule (2)(a) read with sub-rule (5) there is no automatic revocation of order of suspension when Government servant is released or acquitted but the same has to be made by the authority which made the order or any authority which made the order is subordinate. 35. Suspension of Employee on Deputation — (i) By Lending Government— Officer of the State Government, while on deputation to foreign service continues to be an employee of the State Government and remains subject to the control of the State Government. The State Government is competent to charge-sheet him and suspend him while he is on foreign service. Dr. T.R. Sakhuja v. State of Punjab, 1973 (2) SLR 599; Khemi Ram v. State of Punjab, AIR 1976 SC 1737: 1976(3) SCC 699: 1976 (2) SLR 239: 1976 SLJ 414 (SC): 1976 Lab IC 1139. (ii) By Borrowing Government — Borrowing Government can suspend a Government servant whose services have been lent to it. Proviso to Rule 20(1) requires that the borrowing authority shall inform the Department which lent the services of the Government servant, if the event of disciplinary proceedings being commenced against

R.10]

SUSPENSION

117

him, of the circumstances leading to the commencement of such proceedings. Disregard of the requirement of the proviso directing the sending of information does not render either a suspension order or a disciplinary proceeding already commenced illegal or void. Ram Adhar Singh v. Superintendent of Central Excise, 1980 SLJ 714. 36. Suspension of delinquent in custody — The Division Bench of High Court was of the opinion that once a person is in custody the question of keeping him under suspension does not arise. Supreme Court did not agree with the Division Bench because the Division Bench failed to notice that the respondent was due to be released on 27.1.1977 after serving the six months” R.I. imposed on him. After his release in the normal course, he was entitled to claim reinstatement in service unless departmental proceedings were initiated against him for the misconduct for which he was convicted. Therefore, the authority thought it necessary to keep the respondent under suspension, hence, the orders under Rule 10 of the Central Rules were issued keeping the respondent under suspension. Rule 10(1)(a) of the Central Rules empowers the appointing authority to place a Government servant under suspension if an inquiry is either being conducted against him or is contemplated against him. In this case, a disciplinary authority had decided to initiate the disciplinary proceeding against the respondent and pursuant to the said decision and in exercise of the power vested in him by Rule 10(1)(a) of the Central Rules, the respondent was kept under suspension. Therefore, It was held that the concerned authority was well within its statutory power to keep the respondent under suspension. Union of India v. Sunil Kumar Sarkar, AIR 2001 SC 1092: 2001(3) SCC 414: 2001 Supp (1) JT 193. 37. Suspension of a Government Servant Under U.P. Rules — In State of U.P. v. Jawahar Lal Bhargava, 1974 ALJ 282: 1974 AWR (HC) 178, agreeing with the view of Seth, J. in Rajendra Shankar Nigam v. State of U.P., 1973 SLJ 755 and not with the wider view of Division Bench in State of U.P. v. Rajendra Shankar Nigam, 1973 ALJ 703: 1974 (1) SLR 333, it was held that Rule 49 U.P. Civil Services (Classification, Control & Appeal) Rules does not permit the appointing authority to suspend a Government Servant before it decides to initiate a formal inquiry under Rule 55. This view was followed in Jai Singh Dixit v. State of U.P., 1974 SLJ 377. Suspension pending inquiry under Rule 49-A of the U.P. Civil Services (C.C.A) Rules or Rule 1-A of U.P. Punishment and Appeal Rules can be ordered at any stage prior to or after the framing of charges, when on objective consideration the authority concerned is of the view that a formal departmental enquiry under Rules 55 and 55-A of C.C.A. Rules or Rules 5 and 5-A of the U.P. Punishment and Appeal Rules is expected, or such inquiry is proceeding. At what stage the power under these rules can be exercised shall always depend on the facts and circumstances of each case. State of U.P. v. Jai Singh Dixit, 1975 (2) SLR 754 (FB). 38. Suspension of a Government Servant under Orissa Rules — Rule 12 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 provides that the Appointing Authority or any authority empowered by the Governor may place a Government servant under suspension where a disciplinary proceeding against such a government servant is in contemplation or where a case against such a Government servant in respect of any criminal offence is under investigation of trial. By an order

118


[R.10

dated 6.2.1987, the Governor of Orissa in exercise of power under sub-rule (1) Rule 12 of the Rules empowered the Collector of the District to connection with the affairs of the Community Development. Subsequently, the Governor has also empowered the Collector of the District to suspend a government servant working in connection with the affairs of the Community Development. It was held that merely because the Governor subsequently has empowered the Collector of the District to also inflict minor punishment, it does not mean that by such delegation the Governor is denuded of his power to delegate power of suspension on the Collector. Once the Collector was empowered by the Governor to suspend a Government servant working in connection with the affairs of the community development, the said power continued to be exercisable by the Collector even delegation of power on the Collector to impose minor punishment. State of Orissa v. Baidhar Sahu, AIR 2000 SC 1683: 2000(4) SCC 475: 2000(5) JT 499: 2000 Lab IC 1846: 2000(4) SLR 355 (SC). 39. Suspension Order Under Review (Revision) Proceedings — Order of suspension can be ed under Rule 10(1) (a) as the review (revision) proceedings are disciplinary proceedings. T.L. Anantharaman v. Union of India, 1979 (1) SLR 196. 40. Suspension, Charge-sheet and Enquiry Not to be Unduly Delayed — If the charge-sheet is not followed or enquiry is not started within a reasonable time of the order of suspension, it is wholly irregular and unwarranted and the order of suspension is to be set aside. Satkari Chatterji v. Commissioner of Police, AIR 1965 Cal 13; N.L. Sastry v. State of A.P., 1969 SLR 372; Manasaranjan Das v. State of Orissa, 1973 (2) SLR 553. See also Basant Ram Jaiswal v. Area Manager (North), Mahanagar Telephone Nigam Ltd., Bombay Telephones, 1993 (6) SLR 639 (CAT Bombay). 41. Order of Suspension ed Under Misapprehension Which was Revoked : Of No Consequence to Mar Career — (i) Order of suspension was ed by the Prime Minister under some misapprehension and when the petitioner made representation against the same, he was reinstated and the order was revoked. This sad episode in the life of petitioner cannot be treated as of any consequence so as to mar his future career. Abdul Hamid Matu v. State of J. & K., 1974 SLJ 232. (ii) Leave While Under Suspension — Leave may not be granted to a Government servant under suspension F.R. 55. Such a rule cannot be said to be unreasonable. It will prevent the officer from prolonging the disciplinary proceeding against him. Bank of India Officers Association v. Bank of India, 1979 (2) SLR 326. Under rules 10(3) and 10(4), Central Civil Services (CCA) Rules, 1965, as properly interpreted, automatic suspension will operate, on the disciplinary order being set aside by a court, only if the employee is already under suspension. Otherwise, the suspension cannot be retrospective. If the disciplinary order is set aside by a court, employee is entitled to full pay upto court order. N.V.Karwakar v. Deputy Director (Vigilance), (1988) 7 SLR 514, 522, 523 para 15 (CAT New Bombay).

R.10]

SUSPENSION

119

(iii) Lien While Under Suspension — A government servant holding substantively a permanent post retains a lien on that post while under suspension. Fundamental Rule 13(e). 42. Promotion pending disciplinary proceedings — High Court held that the act of suspension was an after thought since two months prior to the disciplinary proceedings, the employee was emled for promotion and therefore High Court directed that no effect to be given to order of suspension and select list for promotion to be given effect forthwith. In appeal Supreme Court held that even if before the date of proceedings the employee had been emled for promotion, government cannot be prohibited from starting disciplinary proceedings if there are reasons for doing so and when disciplinary proceedings are pending it was not appropriate for High Court to direct select list for promotion to be given effect forth with. Government of Andhra Pradesh v. B. Vasantha Rao, 1999(5) SCC 183: 1999(9) JT 171: 1999(8) SLT 353: 2000(1) SLR 321: 2000(3) LLN 18: 2000(84) FLR 146, 43. Compulsory Retirement During Period of Suspension — Whether premature retirement during period of suspension amounts to punishment, see State of Punjab v. Sukh Raj Bahadur, (1968) 3 SCR 234: AIR 1968 SC 1089: (1969) 1 SCJ 51: 1968 SLR 701: 1968 Lab IC 1286; R.C.Roy v. Union of India, AIR 1971 Delhi 186; D.D. Suri v. Government of India, 1973 (1) SLR 668; J.M. Sharma v. State of Haryana, 1981 (1) SLR 554. 44. Sub-rule (3): Application of — Sub-rule (3) deals with a situation where the penalty of dismissal, removal or compulsory retirement from service is set aside in appeal or on review and provides that if the government servant was under suspension the order of suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement. Union of India v. V.B. Hajela, 1997(10) SCC 531. 45. Sub-rule (4), Interpretation of — Sub-rule (4) provides that on the setting aside of a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant and on a decision to hold a further enquiry against him he would be deemed to have been placed under suspension by the appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. It nowhere laid down the circumstances in which the second enquiry could be ordered. Ram Murti Chopra v. Senior Superintendent of Post Offices, 1968 Cur LJ 526. Classification of cases governed by rule 10 (3) and rule 10(4) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, is founded on an intelligible differentia, and has a rational relation to the object of the Rules-Rule 10(4) is therefore constitutionally void. There is a difference between the various categories of suspension under rule 10(4) of Central Civil Services (Classification, Control and Appeal) Rules, 1965. Nelson Motis v. Union of India, (1992) 5 SLR 394 (SC). 46. Sub-rule (4), Application of — Sub-rule (4) deals with a situation where the penalty of dismissal, removal or compulsory retirement from service is set aside or declared null and void in consequence of or by a decision of a Court of Law and

120


[R.10

provides that in such a case if the disciplinary authority, on a consideration of the circumstance of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement has been imposed, the government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement. Union of India v. V.B. Hajela, 1997(10) SCC 531: Union of India v. A. Vasu, 1998 (8) SCC 562. Where the delinquent officer is dismissed from service but order of dismissal is set aside and the authorities decide to hold a further enquiry against him, he shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal and shall continue to remain under suspension until further orders, if the proposed enquiry against him is on the same allegations on which the penalty was originally imposed on him. Where the allegations are dissimilar rule 10(4) is not attracted. If rule 10(4) is not applicable a fresh enquiry is permissible only after reinstating the delinquent officer in service and deemed suspension cannot be sustained in law. A.K. Bala Krishnan Nair v. Senior Superintendent of Post Offices, 1982 (1) SLJ 345: 1981 (3) SLR 395 (Kerala). Compulsory retirement of an employee of the Railway Mail Service was ordered by the competent authority. The employee was convicted by the trial court but exonerated by the appellate court. It was held that further inquiry into the same allegations cannot be held. P.P.Kuttuppan v. Senior Superintendent of R.M.S., (1990) 3 SLR 561, 564 (CAT, Karnataka). See also K. Unnikumaran v. Director General of Ordnance Factory Board, Calcutta, 1994 (6) SLR 464 (CAT Madras). Disciplinary authority is debarred from initiating fresh proceedings on acquittal by the appellate court, when orders are already ed under Rule 19, CCS (CCA) Rules, 1965. Rule 10(4) envisages “further inquiry” (and not a de novo inquiry) where the original order of compulsory retirement has been set aside by the appellate authority on a technical ground. In this case, appellate authority had already exonerated the employee. P.P. Kuttappan v. Senior Superintendent of R.M.S.,Trivandrum, (1990) 12 ATC 6 (Ernakulam). Order placing the employee under deemed suspension prior to his original removal from service, is proper. S.P. Viswanathan v. Union of India, (1988) 4 SLR 729 (CAT Madras). The order of suspension pending enquiry merges with the order of dismissal. When the dismissal order is set aside by the appellate authority or the Civil Court, the order of suspension will not revive. Canara Bank v. M. Ranchandrappa, 1999(5) SLR 87 Kar (DB). 47. Conditions to be Satisfied to Attract Sub-rule (4) — There are two conditions which must be satisfied in order to attract the operation of sub-rule (4). First, the order of dismissal, removal or compulsory retirement must be set aside in consequence of a decision of a court of law, secondly, the disciplinary authority must decide to hold a fresh enquiry on the allegations on which the order of dismissal was

R.10]

SUSPENSION

121

originally ed. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396; Anand Narain Shukla v. State of M.P., AIR 1979 SC 1923: 1980(1) SCR 196: 1980(1) SCC 252: 1979 Lab IC 1214: 1979 (2) SLR 288; A.K. Balakrishnan Nair v. Senior Supdt. of Post Offices, 1981 (3) SLR 395: 1982 (1) SLJ 345. 48. Sub-rule (5)(a), Operation of — Once the relationship of master and servant is dissolved, the suspension necessarily comes to an end and sub-rule (5)(a) cannot possibly be construed to have the effect of continuing the suspension. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396. See also Basant Ram Jaiswal v. Area Manager (North), Mahanagar Telephone Nigam Ltd., Bombay Telephones, 1993 (6) SLR 639 (CAT Bombay). 49. Two Conditions Must Co-exist Before Action can be Taken Under Subrule (5)(b) — One is that the Government servant must be under continuing suspension and the other is that during the continuance of such suspension “any other disciplinary proceedings” should be commenced against him. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396. 50. Suspension Ends on Dismissal, Cannot be Continued Under Sub-rule (5)(b) — The appellant was suspended when a case in respect of criminal offence was under investigation against him. Whilst the criminal case was pending in court departmental enquiry was also started. Special Judge convicted the appellant and the High Court confirmed the conviction in appeal. The appellant was dismissed under Rule 19(i). Supreme Court on appeal set aside the conviction. In consequence of acquittal the Disciplinary Authority set aside the order of dismissal, directed the enquiry to continue and that appellant should continue under suspension until termination of such proceedings under sub-rule (5)(b) of Rule 10. Held, order of suspension came to an end when order of dismissal was ed and order continuing suspension was outside the authority of Disciplinary Authority. H.L. Mehra v. Union of India, 1974 SLJ 379: 1974 (2) SLR 187: AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396. Amended Rules came into force on 3.4.2004 which extended the period of suspension, Order of suspension extended due to corruption charges. Held that no interference with order of extension of suspension period is called for. Prem Narain Gupta v. Union of India, 2005 (3) SLR 448 (Raj. at Jodhpur) 51. Suspension Does Not Revive, If Termination is Quashed — Suspending the petitioner pending enquiry into the charge-sheet will come to an end when his services are terminated. Even if the order determining the employment is quashed, the suspension order does not revive. Om Prakash Gupta v. State of U.P., 1955 SCJ 640: AIR 1955 SC 600: 1955(2) SCR 391: 1956(1) LLJ 1, followed in Sarat Chand Misra v. State of U.P., 1972 SLR 184: 1971 SLJ 1027; H.L.Mehra v. Union of India, AIR 1974 SC 1281: 1975 Lab IC 984: 1975(1) SCR 138: 1974(4) SCC 396; M. Koteswara Rao v. State of A.P., 1975 Lab IC 1244. 52. Direction to Suspend Employee to Attend Office Daily and Mark Attendance — Such instructions are inconsistent with the rules. Zonal Manager, Food

122


[R.10

Corporation of India v. Khaleel Ahmed Siddiqui, 1982 Lab IC 1140 (AP): 1982 (2) SLJ 166: 1982 (2) SLR 779. Denial of subsistence allowance on the ground that employee has not marked his attendance during the period of his suspension. No rule in existence to show that marking of attendance is required from the suspended employee, the denial of subsistence allowance, held improper. Ganesh Ram v. State of Bihar, 1995(2) PLJR 90 affirmed in Anwarun Nisha Khatoon v. State of Bihar, AIR 2002 SC 2959: 2002(6) SCC 703: 2002(6) JT 205: 2002(5) SLR 626 (SC): 2002 Lab IC 2979: 2002 AIRSCW 3461: 2002(3) BLJR 1872: 2002(3) LLJ 844: 2002(4) Pat LJR 68: 2002 SCC(L&S) 961: 2002(95) FLR 40. In another case, where the Rule itself required the delinquent to present himself daily for attendance, it was held that such Rule was arbitrary and did not serve any public purpose and therefore was violative of Article 14 and 19(1)(d) of the Constitution. Suresh Chowdhry v. Union of India, 2003 (2) SLR 426 (Cal.). But where rules required that even during the period of suspension the police officer is required to attend to roll call and be available to the authorities and he remained absent from duty on the ground of non-payment of subsistence allowance it was held that it was his duty to go to the office and claim and collect allowance, which if it is not paid, necessary action can be taken. It was therefore held that the conclusion of disciplinary authority that he was wilfully absent from service was proper. State of Punjab v. Dharam Singh, AIR 1997 SC 1905: 1997(2) SCC 550: 1996(6) SLR 361: 1997(2) SLJ 201: 1997 Lab IC 1918: 1999(3) LLJ 58. 53. Judicial review of suspension— The High Court in its extra-ordinary jurisdiction does not interfere in the matter of suspension order with the issuance of charge-sheet by the department unless such orders of suspension are totally mala fide or the orders of the charge-sheet are based upon no evidence altogether. The matter of evidence cannot be scrutinised in writ jurisdiction under Articles 226/227 of the Constitution of India, especially the writ in the nature of certiorari, which only talk of supervisory jurisdiction. Arun Malik v. State of Haryana, 2002(3) SLR 217 P&H. 54. Restraint on suspension by temporary injunction — Interim injunction ed by the Court restraining employer from suspending employee without stating any reason or recording satisfaction of ground required for ing order of temporary injunction. As interim injunction was granted contrary to settled legal position, the same was set-aside. Deputy Manager, Disciplinary Authority, Oriental Insurance Co. Ltd. v. K. Veerasamy, 1999(5) SLR 461 Mad. SUBSISTENCE ALLOWANCE, PAYMENT OF PAY AND ALLOWANCE 55. Subsistence Allowance: issible on Suspension — A Government servant under suspension or deemed to have been placed under suspension shall be entitled to payments as provided in F.R. 53, 54-A, 54-B. Employee under suspension is entitled to subsistence allowance. Government is not obliged to pay full salary. K.K. Jaggia v. State of Punjab, AIR 1968 Punjab 97 (FB); State of M.P. v. State of Maharashtra, AIR 1977 SC 1466 : 1977(2) SCR 555: 1977(2) SCC 288: 1977 (1) SLR 433: (1977) 2 SCJ 20: 1977 Lab IC 697. See also K. Unnikumaran v. Director General of Ordnance Factory, Board Calcutta, 1994 (6) SLR 464 (CAT Madras).

R.10]

SUSPENSION

123

56. Payment During Suspension — During suspension the Government servant is entitled to payment according to Rules in force, but if there are no rules in that connection or there is no statutory provision, he will be entitled to full payment. R.P. Kapur v. Union of India, AIR 1964 SC 787: (1964) 5 SCR 431: 1966(2) LLJ 164; Balwantray Ratilal Patel v. State of Maharashtra, (1968) 2 SCR 577: (1968) 1 SCWR 964: AIR 1968 SC 800: (1968) 2 SCJ 540; Union of India v. Baij Nath, 1972 SLR 382 (Delhi). Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demolished and the salary is also paid to him at a reduced rate under the nick name of “Subsistence Allowance”, so that the employee may sustain himself. M. Paul Anthony (Captain) v. Bharat Gold Mines Ltd., AIR 1999 SC 1416: 1999(3) SCC 679: 1999(2) JT 456: 1999(2) KLT 17(2): 1999(2) SLR 338 (SC): 1999 Lab IC 1565: 1999(2) LLN 640: 1999(82) FLR 627: 1999(95) FJR 1: 1999(2) SCJ 358: 1999(3) SLJ 152. Employee is entitled to increased rate of subsistence allowance, if the period of suspension has been prolonged for reasons not directly attributable to the Government servant. V.B. Nair v. Supdt. of Post Office, 1990 (7) SLR 229 (CAT, Ernk). 57. Denial due to delay in proceedings — When a workman approaches a competent court bona fidely to protect himself from prejudice likely to be caused by continuing proceedings simultaneously in domestic inquiry as also in the criminal case grounded on the same set of facts and succeeds in getting order from a competent judicial authority staying further proceedings in the disciplinary proceedings till the disposal of the criminal case, it cannot be said that delay on that in completion of disciplinary proceedings is directly attributable to the conduct of such workman. It cannot be denied that a workman is also entitled for a free and fair trial in the criminal case. Hence, if a workman, in order to protect himself from the prejudice that may be caused by simultaneous proceedings, approaches a competent judicial authority and that authority, on being satisfied, taking into consideration the facts and circumstances of the case, stays further proceedings in a domestic inquiry pending a criminal trial, delay caused on that in completion of domestic inquiry cannot be directly attributable to the conduct of such workman because granting stay of further proceedings in a domestic inquiry does not depend on the pleasure or mere wish of a workman himself. May be, in a given case the court may refuse to stay disciplinary proceedings. It is open to the employer to oppose granting order by a competent court staying disciplinary proceedings on all the grounds available to him. B.D. Shetty v. Ceat Ltd., 2002(1) SCC 193: AIR 2001 SC 2953: 2001(2) LLJ 1552. It is another thing to say that in case stay is granted there will be delay in completion of disciplinary proceedings, which is directly attributable to the conduct of a workman. Merely because legal proceedings will be pending in a court or before other authority and they take sometime for disposal, may be inevitably, that itself cannot be the ground to deny subsistence allowance to a workman against a statutory obligation created on the employer. B.D. Shetty v. Ceat Ltd., 2002(1) SCC 193: AIR 2001 SC 2953: 2001(2) LLJ 1552.

124


[R.10

58. Denial due to conviction — Second proviso to Rule 34(2) of the Maharashtra Employees” of Private Schools (Conditions of Services) Rules, 1981, read as under: “Provided further that, when an employee is convicted by a competent Court and sentenced to imprisonment, the subsistence allowance shall be reduced to a nominal amount of rupee one per month with effect from the date of such conviction and he shall continue to draw the same till the date of his removal or reinstatement by the competent authority”. It was held that the above rule is unreasonable and clearly violative of Article 14 as well as 21 of the Constitution of India. Obviously the subsistence allowance is the basic monetary relief provided to an employee which cannot be reduced to the level of Rs. 1/- which would lead the petitioners to total starvation which is patently contrary to the enhanced concept of personal liberty under Article 21 of the Constitution of India which entitled to right to live with human dignity. The aforesaid second proviso to Rule 34(2) is also violative of Article 14 of the Constitution of India as the same is unreasonable and has no rational nexus with the object sought to be achieved. Basweshwar M. Mamdapure v. Primary Education Board, Solapur Corporation, Solapur, 1999(1) SLR 421 Bom (DB). 59. Denial under Standing orders — Under Section 10A, Workman under Industrial Employment Standing Order Act has a right to receive subsistence allowance and the same cannot be curtailed by certified standing order. Mamta Parsad v. Presiding Officer, 2002(1) SLR 232 (P&H). 60. Natural justice — Reinstatement of employee after order of suspension – Order of forfeiture of subsistence allowance cannot be ed without giving opportunity of hearing. Shyam Sunder Mal Mehta v. Rajasthan High Court, 2002(2) SLR 515 Raj (DB). Non-payment of subsistence allowance from the date of suspension till removal and employee not appearing in departmental enquiry and giving financial crunch on of non-payment of subsistence allowance and illness as reason for not participating in Disciplinary Proceedings. Held that it was a clear case of breach of principle of natural justice on of denial of reasonable opportunity to delinquent to defend himself in the departmental enquiry. Jagdamba Prasad Shukla v. State of Uttar Pradesh, AIR 2000 SC 2806: 2000(7) SCC 90: 2000(2) LLJ 1513: 2000 Lab IC 3111: 2000(5) SLR 164: 2000(87) FLR 1: 2000(97) FJR 304 61. Order of Dismissal Set Aside for Non-payment of Subsistence Allowance — Appellant was suspended and enquiry was held at J. 500 kms. away from R where he was residing. No subsistence allowance was paid to him and he did not participate in the enquiry as he had no money to go to J. Enquiry proceeded ex parte. Charges were found proved and he was dismissed from service. Held, the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings and the order of dismissal cannot stand. Ghanshyam Das Shrivastava v. State of M.P., (1973) 1 SCWR 391: AIR 1973 SC 1183: 1973(1) SCC 656: 1973(1) SLR 636: 1973 SLJ 356.

R.10]

SUSPENSION

125

62. Pay and Allowances on Acquittal or Discharge in Criminal Case — (i) When a delinquent is suspended in consequence of the criminal proceedings against him, on acquittal or discharge he is deemed to be reinstated. He is entitled to full salary and allowance. If the Government initiates any departmental proceedings against him fresh order of suspension is necessary unless rules provide otherwise. Jatindra Nath v. State of West Bengal, AIR 1969 Cal 461; See other view that delinquent not entitled to full salary. Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269. (ii) Delinquent was placed under suspension during the pendency of criminal trial. He was acquitted on technical ground. It is for the competent authority to consider what proportion of pay and allowances should be given and what period of absence from duty be treated as period spent on duty. Where in the circumstances it cannot be said that the initial suspension was not justified. He was not entitled to full pay etc. Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269. (iii) Appellant was dismissed from service on conviction. The conviction order was set aside in appeal. Whether petitioner was honourably acquitted or was given benefit of doubt. Whether suspension was or not wholly unjustified. Authority to make specific order and to say whether or not the period of suspension or absence from duty shall be treated as a period spent on duty. Prem Singh v. State of Punjab, 1968 SLR 399; 1968 Cur LJ 247. (iv) For the purpose of deciding whether a suspension was justified or not, the reasons for acquittal may have to be taken into . Jose v. Inspector General of Police, 1974 (2) SLR 419. 63. Concept of “Honourable Acquittal” or “Full Exoneration” — Petitioner was suspended because there was criminal prosecution against him and was reinstated after he was acquitted. He is entitled to full pay during the period of his suspension. It is not open to the authorities concerned to bring in the concept of “honourable acquittal” or “full exoneration” so far as the judgement of the criminal court is concerned. Ramsinghji Viraji Rathod v. State of Gujarat, 1971 Lab IC 923; Union of India v. Jaya Ram, AIR 1960 Madras 325 relied upon, State of Orissa v. Shailabehari, AIR 1963 Orissa 73 dissented from. In Girjaprasad Nagardas Dave v. State of Gujarat, 1971 Lab IC 921, it was held that the authority must apply its mind also to the question whether or not suspension was wholly unjustified, even if it comes to the conclusion that the Government servant has not been fully exonerated. The Supreme Court in State of Assam v. Raghava Rajgopalachari, 1972 SLR 915 held, “If on reading the judgment and order which acquits a Government servant it appears to the Government or the competent authority that the Government servant has not been fully exonerated of the charges levelled against him, the Government or the competent authority would be entitled to come to the conclusion that clause (b) (F.R.54) would apply and not clause (a). Acting under clause (b), the competent authority is entitled to give, if the circumstances so warrant, the whole of the pay and allowances and also treat the whole of the period of absence from duty as period spent on duty”. The spirit of the provisions appears to be that, if a delinquent servant is exonerated merely for non-compliance of the technical procedural rules and is not

126


[R.10

exonerated on merits, he is not entitled to full pay. Even assuming that the petitioner was acquitted on benefit of doubt, it cannot be said that he is acquitted for noncompliance with the technical rules of procedure. An order under F.R. 54(2) or F.R.54(4) cannot be issued without notice to the delinquent office. It was further held that F.R. 54 is not applicable to cases where a Government servant is suspended in view of pending criminal case. It is applicable only to the cases of reinstatement (or revocation of the suspension order) where an order of dismissal, removal or compulsory retirement ed in a departmental proceeding is set aside. A Government servant cannot be deemed the benefit of “duty” and “full pay” where such a servant is suspended to the pendency of a criminal case in which he is acquitted. Mohanlal v. Union of India, 1982 Lab IC 594. Where a Government servant is suspended on the ground that he was involved in a criminal case (section 498A read with section 34, Indian Penal Code) and placed under suspension but re-instated on acquittal by the criminal court, the position is as under:— (i)

The order of suspension ceases to be operative on acquittal even if the acquittal is as a result of giving the benefit of doubt.

(ii)

The acquitted employee is entitled to full salary and allowances since the date of suspension.

(iii)

Neither Fundamental Rules, rule 54B nor instructions issued under the Central Civil Services, Classification etc. Rules, nor istrative instructions can empower the Government to withhold full pay and allowances for the period of deemed suspension which is exclusively relatable to detention and prosecution in criminal court. A.Thankavelu v. Superintendent of Post Offices, (1990) 7 SLR 348, 353, para 9 (CAT Ernakulam).

64. Order for Withholding Pay be ed After Giving Opportunity — Delinquent placed under suspension during pendency of hearing of charges. Re-instated after acquittal. Pay not allowed for the period of suspension. Held, order withholding pay and allowances could not be ed without giving reasonable opportunity of being heard. P.C. Nath v. State of Orissa, 1970 Lab IC 949: 1970 SLR 753; M.L. Babeja v. State, 1968 DLT 648; S. Natarajan v. Supdt. of Police, 1975 Lab IC 132. 65. Speaking Order to be ed — Order under F.R. 54(2) is a quasi-judicial order. Authority must give reasons for his decision and speaking order. M. Gopal Krishna Naidu v. State of M.P., (1968) 2 SCJ 88: AIR 1968 SC 240: 1968(1) SCR 355: 1967 SLR 800; M.L. Babeja v. The State, 1968 DLT 648. 66. Pay of Suspension Period on Termination of Services of Temporary Government Servant — A temporary Government servant under suspension whose services are terminated by notice under Central Civil Services (Temporary Service) Rules without any order or reinstatement, can claim full salary for the period of suspension. Union of India v. Gian Singh Kadian, 1970 DLT 293: AIR 1970 Delhi 185.

R.10]

PENALTIES AND DISCIPLINARY AUTHORITIES

127

67. Limitation to Claim Pay of Suspension, Period When Starts — Cause of action for claiming full pay and allowance did not accrue to the respondent during the period of his suspension and it accrued to him only when the order of suspension stood revoked. Union of India v. Gian Singh Kadian, 1970 DLT 293: AIR 1970 Delhi 185: 1970 SLR 563: State of M.P. v. State of Maharashtra, AIR 1977 SC 1466: 1977(2) SCR 573: 1977(2) SCC 593: 1977 (1) SLR 433: (1977) 2 SCJ 20. 68. Suspension Order, Communication of — An order of suspension when once issued and sent out to the concerned Government servant must be held to have been communicated no matter when he actually received it. State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313: 1966(2) LLJ 188: 1965-66(28) FJR 464: (1966) 2 SCJ 777; State of Punjab v. Khemi Ram, (1971) 1 SCJ 263: AIR 1970 SC 214: 1970 (2) SCR 657; B.J. Shelat v. State of Gujarat, AIR 1978 SC 1109: 1978(3) SCR 553: 1978(2) SCC 202: 1978 SLJ 503: (1978) 2 SCJ 505: 1978 (2) SLR 88; Umashankar Chatterjee v. Union of India, 1982 (2) SLJ 368: 1982 (2) SLR 724. 69. Enquiry resulting in minor penalty — When an inquiry has been held for imposition of a major penalty and finally minor penalty is awarded, the suspension should be considered unjustified and in of F.R. 54B the employee should be paid full pay and allowances for the period of suspension by ing a suitable order under F.R. 54-B. S.P. Naik v. Board of Trustees, Mormugao Port Trust, Goa, 1999(3) SLR 577 Bom (DB). 70. Reinstated Allegations Having Not Been Proved : Period of Suspension to be Treated as on Duty — The petitioner was suspended on allegations that she had not obeyed the transfer order. Allegations were not proved against her and then she was re-instated. The order of re-instatement so far as it states that the period of suspension will be treated as leave of the kind due to her was quashed and it was directed that the period of suspension of petitioner shall be considered as on duty and not as leave of the kind due. Dr. Jagdish Chhatwal Walia v. State of Punjab, 1982 (1) SLR 880.

128


[R . 11

PART V

PENALTIES AND DISCIPLINARY AUTHORITIES R . 11

11. Penalties : — The following penalties may for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: — Minor Penalties: (i) Censure; (ii) withholding of his promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iiia) reduction to a lower stage in the time scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension; (iv) withholding of increments of pay; Major Penalties — Save as provided for clause (III) (A) (v) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; (vi) Reduction to a lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or Service; (vii) Compulsory retirement; (viii) Removal from service which shall not be a disqualification for future employment under the Government;

R . 11]

129


(ix) Dismissal from service which shall ordinarily disqualification for future employment under the Government.

be

a

Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (viii) or clause (ix) shall be imposed: Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed. Explanation — The following shall not amount to a penalty within the meaning of this rule, namely: — (i) Withholding of increments of pay of a Government servant for his failure to any departmental examination in accordance with the rules or order governing the Service to which he belongs or post which he holds or the of his appointment; (ii) Stoppage of a Government servant at the efficiency bar in the time-scale of pay on the ground of his unfitness to cross the bar; (iii) Non promotion of a Government servant whether in a substantive or officiating capacity, after consideration of his case, to a Service, grade or post for promotion to which he is eligible; (iv) Reversion of a Government servant officiating in a higher Service, Grade or post, to a lower Service, grade or post, on the ground that he is considered to be unsuitable for such higher Service, grade or post on any istrative ground unconnected with his conduct; (v) Reversion of a Government servant, appointed on probation to any other Service, grade or post to his permanent Service, grade or post during or at the end of the period of probation in accordance with the of his appointment of the rules and orders governing such probation; (vi) Replacement of the services of a Government servant, whose services had been borrowed from a State Government or any authority under the control of a State Government, at the disposal of the State Government or the authority from which the services of such Government servant had been borrowed;

130


[R . 11

(vii) Compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement; (viii) Termination of the services : — (a)

of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the of his appointment or the rules and orders governing such probation; or

(b)

of a temporary Government servant in accordance with the provisions of sub-rule (1) of rule 5 of the Central Civil Services (Temporary Service) Rules, 1965; or

(c)

of a Government servant, employed under an agreement, in accordance with the of such agreement. COMMENTARY

The commentary on Rule 11 is very exhaustive and has therefore been divided into five synopsis. Synopsis – 1. Relates to penalties in general, minor penalties, censure, withholding of promotion, recovery from pay of whole or part of pecuniary loss caused to Government and withholding of increments of pay. Clauses (i), (ii), (iii), (iv), Explanation (i), (ii) and (iii). Synopsis – 2. Relates to reduction to lower stage in time-scale of pay, reduction to lower grade, post or service, postponement of future increments, reversion and replacement of services of borrowed servants. Clause (v) and (vi), Explanation (iv), (v) and (vi). Synopsis – 3. Relates to compulsory retirement, retirement and superannuation. Clause (vii), Explanation (vii). Synopsis – 4. Relates to discharge, removal and dismissal from service. Clauses (viii) and (ix). Synopsis – 5. Relates to termination of services of (a) a Government servant appointed on probation, (b) a temporary Government servant, (c) a Government servant employed under an agreement, Explanation (viii).

R . 11]


GENERAL S Y N O P S I S-1 1.

Penalty, meaning of ....................................................................................................... 134

2.

Penalties which can be imposed .................................................................................... 134

3.

Adverse entry in confidential report no penalty ............................................................. 135

4.

Discharge or termination of service on abolition of post, no penalty ............................. 135

5.

Non-promotion, no penalty ............................................................................................ 135

6.

Compulsory retirement in public interest, no penalty..................................................... 135

7.

Suspension, no penalty ................................................................................................... 135

8.

Transfer, whether penalty ............................................................................................... 136

9.

Penalty, quantum of ....................................................................................................... 136

10. Imposing of one or more penalties simultaneously ........................................................ 136 11. istrative order involving civil consequences........................................................ 137 12. No penalty can be imposed unless charge is found proved ............................................ 137 13. Imposition of penalty of dismissal, removal or reduction in rank .................................. 138 14. Competent authority to impose penalty .......................................................................... 139 15. Application of Article 311 of Constitution ..................................................................... 139 16. Order whether by way of punishment ............................................................................ 141 17. No penalty after retirement............................................................................................. 142

MINOR PENALTIES CLAUSE (i) Censure 18. Warning when censure ................................................................................................... 143 19. Warning: promotion ...................................................................................................... 143 20. Show cause notice: vague .............................................................................................. 143 21. Censure, no ground for overlooking seniority for promotion ........................................ 143

CLAUSE (ii) Explanation (i) Withholding of Promotion Non-Promotion Promotion 22. Promotion, rules be followed ........................................................................................ 143 23. Promotion rules, change of ............................................................................................. 144

131

132


[R . 11

24. Promotion, relaxation of rule in case of scheduled castes and scheduled tribes ............ 144 25. Promotion, istrative instructions ........................................................................... 144 26. Promotion in Defence Services, executive power of Government to formulate policy .. 145 27. Promotion, principle of .................................................................................................. 145 28. Employee cannot compel that he be appointed or promoted .......................................... 145 29. Promotion cannot be claimed as a matter of right .......................................................... 145 30. Promotion case considered ............................................................................................. 146 31. Non-consideration for promotion ................................................................................... 146 32. Non-consideration for promotion as post temporary or on ad hoc basis ........................ 146 33. Non-consideration for promotion as working somewhere else ...................................... 147 34. Non-consideration for promotion when enquiry is pending ........................................... 147 35. Non-consideration for promotion for being punished for insubordination ..................... 147 36. Non-promotion for remarks in confidential report ......................................................... 147 37. No enquiry is required to decide not to promote ............................................................ 148 38. No right to claim promotion till cadre constituted ......................................................... 148 39. Not considered for promotion as took part in strike ....................................................... 149 40. Non consideration for promotion due to disciplinary punishment.................................. 149 41. Consideration of case for promotion long before vacancy arises ................................... 149 42. Pleading cause for promotion by M.L.A. ...................................................................... 149 43. Promotion, higher educational qualification no proof of more merit ............................ 150 44. Promotion, keeping of in abeyance ............................................................................... 150 45. Promotion, principles of natural justice cannot be applied ............................................ 150 46. Punishment of censure, no bar for promotion ............................................................... 150 47. Departmental Enquiry and Promotion ........................................................................... 150 48. Promotion and sealed cover procedure ........................................................................... 150 49. Promotion, “next below rule” explained ....................................................................... 152 50. Promotion on basis of seniority-cum-merit or fitness ................................................... 152 51. Promotion cannot be claimed by seniority alone ........................................................... 152 52. Promotion as Addl. District and Sessions Judge ........................................................... 153 53. “Seniority-cum-fitness, seniority-cum-merit and merit-cum seniority”, principles of .. 153 54. Promotion to selection post -(i) Not a matter of right .......................................................................................... 154 (ii) Seniority ........................................................................................................... 154 (iii) Merit ................................................................................................................ 154 (iv) Authority who can make selection................................................................... 155 (v) istrative Instructions............................................................................... 155 55. Promotion by selection ................................................................................................... 155

R . 11]


56. Promotion, reasonable classification for ....................................................................... 155 57. Rules of classification ................................................................................................... 155 58. Promotion: community-wise unconstitutional ............................................................... 155 59. Reservation of posts for of Scheduled Castes, Scheduled Tribes and Backward Classes .......................................................................................................... 156 60. Temporary exemption from test for promotion for of Scheduled Castes and Schedule Tribes ............................................................................................................. 157 61. Promotion or demotion, Powers of Court ...................................................................... 157 62. Overlooking for promotion amounts to punishment ...................................................... 158 63. Separate units combined, difference in promotional opportunities unconstitutional ..... 158 64. Writ to challenge promotion constitutes no misconduct ................................................ 158 DEPAR TM EN TA L EXAM I NA TI ON OR TEST FOR PR OM OTI ON

65. Holding test examination for promotion ....................................................................... 158 66. Viva-voce, written test .................................................................................................. 159 DEPAR TM EN TA L PR OM OTI ON , SELECTI ON COM MI TTEE OR BOARD

67. Departmental promotion committee, position of ........................................................... 160 68. Selection Board or Promotion Committee, of ................................................ 161 69. Committee not validly constituted ................................................................................. 162 70. Delay in constitution of the committee.......................................................................... 162 71. Promotion committee proceedings, claim of privilege .................................................. 162 72. Promotion committee, disclosure of proceedings of ..................................................... 162 73. Promotion or selection committee proceedings, scrutiny or review of .......................... 162 74. Promotion committee took into consideration, confidential reports made by a person who himself was in the field for promotion ................................................................... 162 75. Whether the promotion committee to give reasons for selecting or rejecting a candidate ....................................................................................................................................... 163 76. Judicial review of reasons given by Committee ............................................................. 163 77. Recommendations of Promotion Committee not binding .............................................. 163 78. Public Service Commission, opinion of ........................................................................ 164 79. Ad-hoc promotion ......................................................................................................... 164 80. Refusal to accept promotional post ............................................................................... 164 81. Supersede, meaning of .................................................................................................. 164

CLAUSE (iii) Recovery from Pay of Pecuniary Loss 82. Recovery of loss ............................................................................................................ 164

133

134


[R . 11

CLAUSE (iv) Explanation (ii) Withholding of Increments of Pay 83. Increment defined........................................................................................................... 165 84. Advance increment discontinued .................................................................................. 165 85. Increments, discrimination ............................................................................................ 165 86. Increment and moral turpitude ...................................................................................... 166 87. Increment is earned as a matter of course unless withheld ............................................ 166 88. Increment stopped for not ing departmental examination ....................................... 167 89. Increment, stoppage of – Speaking order be ed ...................................................... 167 90. Increment stoppage due to Absence from Duty ............................................................. 167 91. Increment stoppage and Natural Justice ......................................................................... 168 92. Increment when becomes due during period of notice to retire compulsorily ............... 168 93. Postponement of future increment ................................................................................. 168 94. Entitlement on reinstatement .......................................................................................... 168

Explanation (iii) Stoppage at the Efficiency Bar 95. Efficiency bar, crossing of ............................................................................................. 168 96. Stoppage at efficiency bar for unfitness ........................................................................ 169 97. Stoppage at efficiency bar for adverse remarks ............................................................. 169 98. Stopping of crossing of efficiency bar for unsatisfactory work and inefficiency .......... 169 99. Discretion of authority to allow crossing of efficiency bar from a certain date.............. 170 100. Discretion of authority not to allow to cross efficiency bar: whether court can interfere in the discretion of Authority ........................................................................................ 170 101. Order stopping to cross efficiency bar, time when to be ed .................................... 170 102. Order allowing to cross efficiency bar whether condones all previous adverse entries ............................................................................................................................ 170

1. Penalty, Meaning of — The expression “penalty” carries with it a sense of punishment. S.K. Dasgupta v. O.N.G. Commission, AIR 1970 Guj. 149; Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New Delhi); Asit Baron Choudhury v. Union of India, 1994 (7) SLR 518 (CAT Calcutta). 2. Penalties Which can be Imposed — It is the basic principle of istrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. State of Andhra Pradesh v. N. Radhakishan, 1998(4) SCC 154: AIR 1998 SC 1833: 1998(2) SLR 786: 1998(3) SLJ 162: 1998(2)

R . 11]


135

LLN 452: 1999(94) FJR 62. No penalty can be imposed outside the Classification, Control and Appeal Rules. An order ed against a teacher withholding his pay temporarily for unsatisfactory work was held against the spirit of the constitution. Suraj Narain v. State of M.P., AIR 1960 MP 303 see also State of Punjab v. Inder Sain Sharma, 1968 SLR 519, wherein it was held that no penalty can be imposed which does not exist in the Act or Rules. 3. Adverse Entry in Confidential Report : No Penalty — Making of an adverse entry is not equivalent to imposition of a penalty. R.L.Butail v. Union of India, (1970) II SCWR 561: (1970) 2 SCC 876: 1970 SLR 426: (1971) 2 SCJ 566. 4. Discharge or Termination of Service on Abolition of Post, No Penalty — The discharge of a Civil servant on of abolition of the post held by him not an action which is proposed to be taken as a personal penalty but it is an action concerning the policy of the State whether a post should continue or not. Ramnatha Pillai v. State of Kerala, (1974) 1 SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 515: 1973(2) SCC 650: 1974(1) SLR 225; State of Haryana v. Des Raj Sangar, AIR 1977 SC 1199: 1976 (1) SLR 191; 1976 SLJ 222: 1976 Lab IC 849. The old post is abolished and another candidate is appointed in newly created post, Mahesh Kumar Mudgil v. State of Uttar Pradesh, (1998) 1 SLJ 266. 5. Non-promotion, No Penalty — Non-promotion to a post after considering the case of a Government servant does not amount to reduction in rank or penalty. R.K.Kaw v. State of J & K, AIR 1958 J & K 43; Vidya Sagar v. Board of Revenue, U.P., AIR 1964 All 356; State of West Bengal v. Smt. Kalyani Chowdhury, AIR 1970 Cal 225. 6. Compulsory Retirement in Public Interest, No Penalty — The premature retirement of a Government servant in public interest casts no stigma and is not punishment. Baikunthanath Das v. Chief District Medical Officer, 1982 (1) SLJ 648: 1981 (3) SLR 459; Kartar Singh v. Punjab State, 1982 (1) SLR 307. See also State of Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1998(1) SLR 67: (1998) 1 SCJ 305. 7. Suspension, No Penalty — Suspension of an officer pending a disciplinary proceeding is not a punishment. Niranjan Misra v. State of Orissa, 1982 (2) SLR 106. Suspension is not a punishment but is only on of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment on to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296: 1994(4) SCC 126: 1994(2) SLJ

136


[R . 11

72: 1994(27) ATC 530: 1994(84) FJR 527: 1994(68) FLR 970: 1994(1) LLN 889: 1994(2) SLR 384: 1995(1) LLJ 568. 8. Transfer, Whether Penalty — Permanent service or department can be made irrespective of the wishes of the Government servant. The transfer of lien is also justified. [Fateh Singh Chugha v. State of Punjab, AIR 1970 P&H 325; Mathew Muthalali v. Revenue Divisional Officer, 1973 SLJ 213]. But the transfer from one transfer of an employee always means and implies transfer to the same post which he is holding or to an equivalent post in the sense of a post in the same grade or carrying the same pay-scale. Transfer to a lower post is reversion and reduction in rank. Transfer to a post which has less powers and status is also reduction in rank. [Devi Prasad Upadhya v. Director of Panchayat Raj, U.P., 1974 (2) SLR 199; Madan Gopal Singh v. Union of India, 1969 SLR 576 (Delhi)]. Because of certain allegations of misconduct and wilful disobedience the authorities instead of taking any disciplinary action against him transferred him. The transfer being by way of punishment is against the provisions of Article 311(2) without giving him an opportunity of being heard. Biman Kumar Roy v. S. Lakshminarayanan, 1978 (2) SLR 136. Also see Transfer (Allied Service Matters). 9. Penalty, Quantum of — In taking action against a Government servant who is convicted of any offence, the authority concerned has to take into not merely the fact of his conviction but should also examine his conduct leading to his conviction and consider inter alia the nature and quantum of the penalty to be imposed. Rajender Singh v. Punjab State, 1969 Cur LJ 821: 1969 SLR 754; K.M. Agrahari v. Lt. Governor, Delhi istration, 1980 (3) SLR 555: 1981 SLJ 216. See also Asit Baran Choudhury v. Union of India, 1994 (7) SLR 518 (CAT Calcutta); Ansar Ali Rakshak v. Union of India, (1984) 1 SLR 369 (Guj). Unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625: 1999(1) SCC 759: 1999(1) LLJ 962: 1999(1) SCJ 265: 1999(1) KLT 38(SN): 1999 Lab IC 918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65. 10. Imposing of One or More Penalties Simultaneously — (i) The words “The following penalties may, for good and sufficient reasons as hereinafter provided, be imposed on a Government servant” indicate that it is open to a punishing authority to impose any one or more of the penalties. There is no bar for the punishing authority to impose two of the penalties enumerated in the Rule simultaneously. Bairagi Charan Baisoi v. State of Orissa, 1974 SLJ 25: Punnose v. Manager, P & T, 1977 (2) SLR 399. (ii) In Swami Saran Saxena v. State of U.P., 1969 SLR 787, it was however, held that two penalties cannot be imposed for the same misconduct. (iii) Punishment of withholding increment when the appeal against punishment was pending and the period for which the increment was with-held expired in the meanwhile during which he was not considered for promotion. Held that principles of

R . 11]


137

double jeopardy has no application. Chittoor Co-operative Town Bank Ltd. v. A. Devendra Reddy, 2002(1) SLR 106 AP (DB). While considering grant of promotion it is open to the authority to consider the facts that earlier some punishment was imposed on the candidate during the relevant period. Stoppage of increment in this regard would not amount to Double Jeopardy. Collector of Thannjavur District. v. S. Rajagopalan, 2000(9) SCC 145: 2000(3) JT 376: 2000(7) JT 309: 2000(85) FLR 381: 2000(2) SLR 552. See also Union of India. v. K.V.Janki Raman, 1991(3) SCR 790: AIR 1991 SC 2010: 1991(4) SCC 109: 1991(3) JT 527: 1992(23) ATC 322: 1991(63) FLR 766: 1991(2) LLJ 570: 1991 Lab IC 2045: 1991(63) FLR 766: 1991(5) SLR 602: 1991 Lab IC 2045: 1992(1) ATR 173. 11. istrative Order Involving Civil Consequences — An istrative order which involves civil consequences must be made consistently with the rules of natural justice after informing the civil servant of the case of the State, the evidence in thereof and after giving an opportunity to the civil servant of being heard and meeting or explaining the evidence. State of Orissa v. Dr. (Miss) Binapani, (1967) II SCWR 443: (1967) 2 SCR 626: AIR 1967 SC 1269; (1967) 2 SCJ 339. The matter can not be dealt with as routine istrative matter as it is a quasi judicial matter involving service career of the employee and the Competent Authority is required to speaking order by giving reasons for imposing the penalty after considering the enquiry report, representation of the petitioner and other material concerning disciplinary proceedings on record. Whenever an Authority decides a matter, which entails civil consequences to the person concerned, it must speaking order giving reasons. Yashpal Singh v. National Textile Corporation Ltd., 1999(1) SLR 680 HP (DB). The penalty of removal from service cannot be imposed without recourse to disciplinary proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1998(9) JT 81: 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124 12. No Penalty can be Imposed Unless Charge is Found Proved — After departmental enquiry the Director ordered that the respondent should resume duty and be paid half of basic pay. A warning was also issued that he should not take part in any political activities in future, the order did not contain any finding on the charges preferred against him. Held, since the respondent has not been found guilty, the payment of only 25 percent of his basic pay and the warning as disciplinary measures, i.e. as penalties could not be ed. State of West Bengal v. Bata Krishna Barman, AIR 1971 SC 156: 1970(3) SCC 612: 1971 Lab IC 23: 1971 SLR 600. The petitioner was served with a charge-sheet to which he replied. No enquiry was held as provided in the rules, second show cause notice was issued and impugned order imposing penalty was ed. Held, the procedure adopted for holding the petitioner guilty and the ing of the impugned order is completely violative of the rules and the provisions of Article 311 of the Constitution. It is patent that subsequent to the serving of the charge-sheet on the petitioner no enquiry was held and thus it could not possibly be held that any charge against him had been established. Further he has been punished on the basis that charges of forgery have been established against him but this was neither a charge in the charge-sheet nor was one of the grounds

138


[R . 11

mentioned in the show cause notice. Impugned order wholly unsustainable and quashed. Balraj Kumar Murria v. State of Punjab, 1982 (1) SLR 355. In criminal case the charge is to be proved by the Standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities. Senior Superintendent of Post Offices, Pathanamthitta v. A. Gopalan, AIR 1999 SC 1514: 1997(11) SCC 239: 1998(9) JT 332: 1999(1) LLJ 1313: 1999 Lab IC 234: 1999(82) FLR 784: 2000(1) LLN 92; See also Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3) SCC 628: 1994(6) JT 109:1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1994(4) CCR 769(SC): 1995(2) LLJ 633: 1996(2) LLN 451; Govind Das v. State of Bihar, 1997(11) SCC 361. 13. Imposition of Penalty of Dismissal, Removal or Reduction in Rank — Article 311 of Constitution provides:— “(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply:— (a)

where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b)

where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or

(c)

where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” The penalty of removal from service cannot be imposed without recourse to disciplinary proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1999(1) CLT 134(SC): 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124 .

R . 11]


139

14. Competent authority to impose penalty — For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head of the Office. As a result, the Head of Office, namely, the Assistant Manager was held to be the competent authority to appoint. Once he is the competent authority to appoint, he is equally, the competent authority to impose the penalty. Himachal Road Transport Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24. As regards competent authority to issue chargesheet, see Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708: 1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1; Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996(6) JT 450: 1996 SCC(L&S) 433: 1996(32) ATC 663: 1996(2) SLR 470: 1996(1) UJ 424: 1996(74) FLR 2510: 1996(2) LLN 515: 1997(2) LLJ 191. 15. Application of Article 311 of Constitution — The first decision which has now become a locus classicus on the subject is the decision in Parshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36. The principles that were laid down in this case are as follows:— (1) Article 311 of the Constitution of India makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them. (2) The protection of Article 311 is available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. (3) If the termination of service or reduction in rank is not by way of punishment, Article 311 is not attracted. To determine whether the termination or the reduction is by way of punishment one has to consider whether the servant has the right to hold the post from which he has been either removed or reduced. In the case of a probationary or officiating appointment to a permanent or temporary post there is no such right. This does not mean, however, that the termination of service or reduction in rank of servant who has no right to the post there can never be dismissal or removal or reduction by way of punishment. If Government expressly chooses to penalise the servant for misconduct, negligence, insufficiency or the like by inflicting on him punishment of dismissal, removal or reduction, the requirements of Article 311 must be complied with. (4) A reduction in rank must be a punishment if it carries penal consequences with it and the two tests applied are: (i) Whether the servant has a right to the post or the rank; and (ii) Whether evil consequences such as forfeiture of pay and allowances, loss of seniority in his substantive rank, stoppage or postponement of future chances of promotion follows as a result of the order ?

140


[R . 11

The principles formulated above have furnished the principal guidelines in all future cases relating to dismissal, removal or reduction in rank of Government servants. Depending on the nature and circumstances of each individual case it has often been necessary for the Supreme Court to clarify and modify these principles. In State of Punjab v. Sukh Raj Bahadur, (1968) 3 SLR 234: AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701: (1969) 1 SCJ 51, after analysing the various decisions the Supreme Court formulated the following propositions: (1) The Services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311. (2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. (3) If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. (4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311. (5) If there be a full-scale departmental enquiry envisaged by Article 311 i.e. an Enquiry Officer is appointed, charge-sheet is submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article. The Sukh Raj Bahadur”s case was followed in Ram Gopal Chaturvedi v. State of M.P., (1970) 1 SCJ 257: 1970 (1) SCR 472: AIR 1970 SC 158: 1969(2) SCC 240: (1969) 1 SCWR 1115. In State of U.P. v. Sughar Singh, 1974(2) SCR 335: AIR 1974 SC 423: 1974(1) SCC 218: 1974(1) SLR 435: 1974 Lab IC 353: 1974 SCC (Lab) 124, the Supreme Court observed that sometimes in applying the principle of Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217 case to the facts of a particular case, one aspect had to be emphasised in view of the peculiar circumstances of that case and in doing so that court gave a special formulation which covered the facts of that case. That principle was later found either inadequate or inapplicable in another case where the facts and circumstances have been slightly different and which called for emphasis on a different aspect of the rules. In this way that court has found it necessary to mould the principles to suit the needs of the varying circumstances of different cases. The original principles were not intended to be abandoned but reshaping of the principles became necessary and even unavoidable to fit them accurately and appropriately to new set of circumstances.

R . 11]


141

Also see Syn. 2, Syn. 3, Syn. 4 and Syn. 5. 16. Order Whether by Way of Punishment — In order to find out whether an impugned order is one ed by way of punishment, the form in which the order is expressed is not decisive, and the circumstances preceding or attendant of the order have to be examined in each case. The motive behind the ing of the order is of no consequence. Appar Apar Singh v. State of Punjab, 1971(2) SCR 890: 1970(3) SCC 338: (1971) 2 SCJ 566: (1971) 1 SCWR 226: 1971 SLR 71; Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR 701: 1974 Lab IC 1380; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462: 1976(4) SCC 52: 1976 (2) SLR 859: 1976 SLJ 583; Oil and Natural Gas Commission v. Md. S. Iskander, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 (2) SLR 792: 1980 SLJ 591; Nepal Singh v. State of U.P., (1980) 2 SCJ 179: AIR 1980 SC 1459: 1980(3) SCR 478: 1980(3) SCC 402: 1980 Lab IC 749: 1980 (2) SLR 108: 1980 SLJ 711; Union of India v. P.S.Bhatt, AIR 1981 SC 959: (1981) 2 SCJ 65: 1981 (1) SLJ 212: 1981 (1) SLR 370; Somnath Sahu v. State of Orissa, 1981 (2) SLR 550; Commodore, Commanding, Southern Naval Area v. V.N. Rajan, (1981) 2 SCJ 85: AIR 1981 SC 965: 1981(3) SCR 165: 1981(2) SCC 636: 1981 Lab IC 605: 1981 (1) SLR 656: 1981 (2) SLJ 48. Mere holding of an enquiry does not ipso facto make the order of termination penal in nature, once the employer wishes not to continue the enquiry in exercise of his right in accordance with the of appointment. The enquiry held prior to the order of termination cannot turn otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the concerned employee. Shailaja Shivajirao Patil v. President Hon. Khasdar UGS Sanstha, 2002(1) SLR 371 (SC): 2002(1) JT 431; relying upon Pavenendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002 SC 23: 2001(1) SCC 520: 2001(9) JT 420 (SC): 2001 AIRSCW 4616: 2001 AllLJ 2807: 2002(1) AllMR 302: 2002(1) AllWC 42: 2002(1) Andh LD 81: 2002(100) FJR 64: 2002(92) FLR 349: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat LJR 204: 2002 SCC (L&S) 170: 2002(2) SLJ 336: 2001(8) SLR 722. In one case the termination was ordered on of the conviction which was ultimately set aside in appeal and substituted with acquittal. Termination though effected after payment of retrenchment benefit, it was held that the order of termination being punitive and stigmatic and in violation of principles of natural justice is not sustainable. Nar Singh Pal v. Union of India, AIR 2000 SC 1401: 2000(3) SCC 588: 2000(3) JT 593: 2000(96) FJR 502: 2000(2) SLR 592 (SC): 2000(3) SLJ 332: 2000 Lab IC 1377: 2000(85) FLR 458. In another case charge sheet was issued to Probationer and summary inquiry was held in the matter. The Inquiry Officer finding nothing more than inability of the employee to meet the requirement of the post. Order of termination ed immediately thereafter was held to be not stigmatic. Parvanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9) JT 420: 2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2001 AIRSCW 4616: 2001 All LJ 2807:

142


[R . 11

2002(92) FLR 349: 2002(100) FJR 64: 2002(1) Mad LJ 151: 2002(2) Mah LJ 151: 2002(1) Pat LJR 204: 2002 SCC(L&S) 170: 2002(1) SLJ 336. The employer is entitled to engage the service of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally, services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without asg any reason. If the order on the face of its states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated. Krishnadevaraya Education Trust v. L.A. Balakrishna, AIR 2001 SC 625: 2002 SCC(L&S) 53: 2001(1) JT 617: 2001(1) SLR 635 (SC): 2001 Lab IC 642: 2001 AIRSCW 253: 2001 AIR Kant HCR 2152: 2001(1) Cur LR 534: 2001(2) LRI 1248. In case of refusal to extend period of probation It was held that no Court can direct an authority to extend the period of probation. Order of termination being exfacie not stigmatic in nature it was held that no interference can be made with the order of termination. Deputy Inspector General of Police, Kurnool v. R.S. Madhu Babu, 2002(2) SLR 525 AP (DB). 17. No Penalty After Retirement — It is now well settled that a disciplinary proceeding against a Government servant comes to an end when he retires and there is no power in Government to retain him in service so that a punishment may be imposed on him in a pending disciplinary proceeding. K.S. Rajasekhriah v. State of Mysore, 1968 SLR 269; Subba Rao v. State of Mysore, 1963 (1) Mys LJ 80; A.R.R. Deshpande v. Union of India, (1971) 2 SLR 776; O.P.Gupta v. Union of India, 1981 (3) SLR 778; Mukhtiar Chand Dhir v. State of Punjab, 1982 (1) SLR 889. In one case, in the service rules no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation. Held that in view of the absence of such provisions in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC 666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999 Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294. When no disciplinary action is initiated under All India Service Rules while the employee was in service disciplinary action cannot be taken after the retirement of the employee and similar proceedings initiated under State Rules prior to promotion of the

R . 11]


143

candidate to All India Service cannot be continued after such promotion. State of Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB). In another case it was held that the Government can conduct inquiry into misconduct, negligence or financial irregularity even after retirement of an employee. D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442: 1999(1) AD(Delhi) 649: 1999(1) LLJ 871. The enquiry proceedings can be legally continued against the officer even if he has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR 337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB). MINOR PENALTIES CLAUSE (i) Censure 18. Warning When Censure — Disciplinary authority issued warning intended to be taken into consideration for assessing the official career of petitioner. Copy of the order placed in the character roll of the petitioner. Such a “warning” amounts to penalty of “censure” on the finding that he was guilty of misconduct. Nadhan Singh v. Union of India, 1969 SLR 24 (Delhi). 19. Warning: Promotion — If “Warning” given to any employee without hearing him, cannot be used against the employee who is warned, when considering his suitability for promotion. Madhavan v. CIT, (1983) 1SLJ 240: (1982) 2 SLR 607 (Ker). 20. Show Cause Notice: Vague — Show cause notice was served and appellant filed the reply. Penalty of censure was imposed on him. Held, show cause notice was too vague to permit the appellant to give an effective reply and the order was therefore struck down. B.D. Gupta v. State of Haryana, AIR 1972 SC 2472: 1973(2) SCR 323: 1973(3) SCC 149: 1972 SLR 845: (1973) 1 SCJ 376. 21. Censure, No Ground for Overlooking Seniority for Promotion — Censure by itself is not a ground for overlooking seniority in the matter of promotion. S. Mukandan Menon v. State of Kerala, 1970 Lab IC 897: 1970 SLR 586. CLAUSE (ii) Explanation (i) Withholding of promotion, Non-promotion, Promotion 22. Promotion, Rules be Followed — (i) If there are rules for any class, that class must be governed by these rules, and the recruitments, promotions, seniority etc., must be in accordance with those rules. Lehna Singh v. Punjab State, 1970 SLR 844: AIR 1971 Pun 198. Even in matters of privileges as that of promotion in view of Article 16 of the Constitution which has introduced a concept of rule of law, the State cannot act arbitrarily. The State must show appropriate statutory rule or principle showing rational purpose for its action which relates to the function the State performs in ing any such order to the detriment of the concerned Government servant. V.L. Poonekar v. L.S. Kaul, 1969 Lab IC 1019.

144


[R . 11

(ii) Promotion by Mistake in Contravention of Rules, Mistake can be Rectified — The petitioner was promoted by the Collector on the basis of merit. Relevant rules did not provide for promotion on the basis of merit. Collector issued another order by which the earlier order of promotion of petitioner was revoked. Order of Collector upheld. Gulab Chand v. State of Rajasthan, 1979 SLJ 163. 23. Promotion Rules, Change of — It is open to the rule-making authority to change the rules from time to time and in doing so it is empowered to change the method of selection according to exigencies of service. Durga Dass v. Union of India, 1969 SLR 278 (Delhi). It is well settled that rules made under the proviso to Art. 309 are legislative in character and can be given retrospective effect. The conditions of service could not however be altered to the disadvantage of petitioners by retrospective amendment of the Rules. N.C. Singhal v. Director-General of Armed Forces, AIR 1972 SC 628: 1972(4) SCC 765: 1972 SLR 178: 1972 Lab IC 342; C.Cheluvaiah v. State of Karnataka, 1979 (3) SLR 24. The new rules will not operate to deprive any person of promotions already earned in the past. Wg. Commander J. Kumar v. Union of India, 1982 (1) SLJ 452: 1982 (1) SLR 715: 1982 Lab IC 1586: AIR 1982 SC 1064: 1982(3) SCR 453: 1982(2) SCC 116. 24. Promotion, Relaxation of Rule in Case of Scheduled Castes and Scheduled Tribes — Where the rule provided that no officer will be eligible for promotion unless he has ed the departmental examination in all subjects by the higher standard but the rule was relaxed in the case of Scheduled Castes and Scheduled Tribes employees and they were given an extended period of two years for ing the special test of departmental examination by the higher standard for promotion, the relaxation was not in violation of Art. 16. Laxman Prasad Sinha v. State of Bihar, 1979 (3) SLR 389; State of Kerala v. N.M. Thomas, AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310: 1976 Lab IC 395: 1976 (1) SLR 805. See also Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India, 1980 (3) SLR 645. 25. Promotion, istrative Instructions — In absence of statutory rules the State Government may issue istrative instructions in the matter of principles to be followed for promotion. Ranjit Singh v. President of India, 1971 (2) SLR 561 (Punjab). These instructions must be followed: G.C. Dhiman v. State of H.P., 1979 (1) SLR 532. Any directive which superimposes a new criterion on the rules will be bad as lacking in jurisdiction. No one can issue a direction which in substance and effect amounts to an amendment of the rules made by the President under Art. 309. S.L.Sachdev v. Union of India, 1980 (3) SLR 503: 1981 (1) SLJ 115 (SC): AIR 1981 SC 411: 1981(1) SCR 971: (1980) 4 SCC 562: 1980 Lab IC 1321. Right of consideration for promotion available under statutory rules cannot be taken away by an istrative order which is in the nature of a suggestion to the Government to exclude a particular category of people from consideration. Provisions of statutory rules cannot be taken away by a suggestion of the executive until and

R . 11]


145

unless the rules are appropriately amended. N.K. Pankajakshan Nair v. P.V. Jayaraj, 2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141. 26. Promotion in Defence Services, Executive Power of Government to Formulate Policy — The executive power of the Union of India, when it is not trammelled by any statute or rule, is wide and pursuant to its power it can make executive policy. A policy once formulated is not good for ever, it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and re-adjust it according to the compulsions of circumstances and imperatives of national considerations. But one imperative of the Constitution implicit in Art. 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. So, whatever policy is made should be done fairly and made known to those concerned. Col. A.S. Sangwan v. Union of India, AIR 1981 SC 1545: 1980 Supp SCC 559: 1981 Lab IC 831: 1980 (2) SLR 1. 27. Promotion, Principle of — The principle of “seniority-cum-fitness” or “seniority-cum-merit” has generally been applied at the lower levels of service where the duties are of a routine nature. It has also been applied in promotions from a junior scale post to a senior scale post within the same service. But when the question arises of appointment to a higher service consisting of posts carrying superior responsibility the emphasis shifts from “seniority- cum - fitness” to “merit-cum-seniority”. Hari Dutt Kainthla v. State of H.P., 1974 (1) SLR 208: 1974 SLJ 525 (FB), see also Hari Dutt Kainthla v. State of H.P., AIR 1980 SC 1426: 1980(3) SCR 363: 1980(3) SCC 189: 1980(2) SLR 154: 1980 Lab IC 825. Unless the rules show that a particular promotion should be based principally on the principle of selection, the formula of merit-cum-seniority should be applied, and the normal principle of seniority-cum-merit should be followed. D.K. Bhatnagar v. State of H.P., 1979 (2) SLR 693. 28. Employee Cannot Compel that he be Appointed or Promoted — (i) No employee can compel appointing authority to appoint him to a particular post or to promote him to a higher category. All that he is entitled to is that his case be considered. University of J. & K. v. Dharamvir, 1973 (1) SLR 337: Karam Singh Grewal v. State of Punjab, 1975 (2) SLR 189: 1976 SLJ 189. (ii) Employee Put on a for Promotion — The circumstances that the appellant was put on a for promotion does not mean that he would be automatically promoted to the higher post. Being emled for promotion confers upon the person concerned the limited right of being considered for promotion at the given moment. Events subsequent to the formation of may render any person, who is included in the , unfit for promotion. N.M. Siddiki v. Union of India, AIR 1978 SC 396: 1978(2) SCC 349: 1978(2) SCC 349: 1978(1) LLJ 212: 1978 SLJ 576: 1978 (1) SLR 279 (SC). 29. Promotion cannot be Claimed as a Matter of Right — When the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right. If he is found unfit to discharge the duties of the higher post, he may be ed over and an officer junior to him may be promoted. State of Mysore v. S.

146


[R . 11

Mahmood, AIR 1968 SC 1113: 1968(3) SCR 363: 1968 SLR 738; Lal Chand Pargal v. Director, N.E.S., AIR 1970 J& K 57 (FB); Lalit Mohan Deb v. Union of India, AIR 1970 Tripura 10. (i) Officer cannot Claim to be Included in I.A.S. Select List as a Matter of Right — The Select List is prepared by the Select Committee on consideration of the merits on the basis of suitability of the officer concerned and recommendations made by the Selection Committee have to be approved by the Union Public Service Commission. An officer cannot claim to be included in the Select List as a matter of right. Gurdial Singh Fiji v. State of Punjab, 1981 (2) SLJ 457: 1982 (1) SLR 651 (SC). 30. Promotion Case Considered — Promotion case of employee considered. No case for employee. Bikkar Singh v. State of Punjab, 1968 SLR 808; Union of India v. Durgadas, AIR 1978 SC 1132: 1979(1) SCC 59: 1978 (2) SLR 103: 1978 SLJ 575; Rameshwar Prasad v. State of Bihar, 1980(1) SCR 456: AIR 1980 SC 104: 1979(4) SCC 368: 1980 Lab IC 1: 1979(2) SLR 390: 1979 SLJ 573: 1979 SCC (Lab) 371: 1979 BLJ 597: ILR (1979) HP 184: 1980(1) SCWR 116. Promotion made on basis of seniority can be legally adopted as reasonable basis for promotion, Vimal Kumari v. State of Haryana, (1998) 2 SCJ 99. For promotion of employee lower in seniority list see Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10) JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260.. 31. Non-consideration for Promotion — The appropriate authority is bound to take the claims of all persons entitled to promotion under consideration. Nonconsideration of claim of an employee, otherwise qualified for consideration, vitiates the exercise of jurisdiction in the matter and subjects the action to the scrutiny of the court. Anil Chandra v. State of Orissa, AIR 1970 Orissa 19; B.Chandragupta v. Chairman, Post and Telegraph Board, 1970 SLR 284. See also Dr. Kartar Singh Rai v. State of Punjab, AIR 1970 Punjab 112; Ram Sarup v. State of Punjab, 1982 (2) SLR 362. State Government while promoting the respondents did not consider the cases of appellants who were entitled to promotion on merit although in fact most of the appellants were senior to some of the respondents. The service records of some of the respondents were sent to the Public Service Commission but those of the appellants were not sent at all to the Public Service Commission as a result of which the cases of appellants could not be considered even by the Commission. Held, there has been a clear violation of Articles 14 and 16 of the Constitution. Order of promotion of respondents quashed. Sheo Dayal Sinha v. State of Bihar, 1981 (2) SLR 1: AIR 1981 SC 1543: 1982(1) SCC 373: 1981 Lab IC 819. 32. Non-consideration for Promotion as Post Temporary or on ad hoc Basis— An employee has a right to ask for consideration of his claim for promotion along with others who are similarly situated even though it may be a case of temporary appointment or the post is on ad hoc basis. Gordhan Lal v. S.K. Durgia, 1977 SLJ 131: 1977 (1) SLR 531.

R . 11]


147

33. Non-consideration for Promotion as Working Somewhere Else — One who has been granted pro forma promotion on of the fact that he has been working somewhere else and has been continuing his lien in the parent post would also entitle him to be considered for promotion. Anil Chandra v. State of Orissa, AIR 1970 Orissa 19. The fact that the appellant was transferred or deputed to another department temporarily would not be made a point against him for non-consideration of his claim for promotion and for giving other juniors promotion over his head during his deputation or transfer. Ramnarayan Chand v. State of Rajasthan, 1981 (1) SLR 85. 34. Non-consideration for Promotion When Enquiry is Pending — If there is no suspension and the officer continues to work, the pendency of enquiry need not prevent his being either promoted, reverted or transferred in accordance with exigencies of istration. D. Srinivasa Iyer v. State of Mysore, 1971 Lab IC 937: 1971 (1) SLR 202; Balbir Singh v. State of Punjab, 1975 (1) SLR 241. It is now well settled that mere pendency of disciplinary proceedings cannot be a ground for withholding promotion, if a Government employee is otherwise eligible to be promoted in accordance with the rules. [Vagadiswara Rao v. Postmaster General, A.P., 1978 SLJ 210]. The authorities concerned have to consider the case of an employee for promotion and his case need not be postponed due to pendency of disciplinary proceedings against him. K. Samaiah v. Zonal Manager, Food Corporation of India, 1978 SLJ 295; K.V. Subrahmanyam v. Zonal Manager, Food Corporation of India, 1979 (3) SLR 453; Director of Postal Services v. C. Muneswara Rao, 1980 (2) SLR 662; Rup Lal v. State of H.P., 1980 SLJ 348. By now it is well laid down that a public servant whose consideration for promotion has been ed over on of the pendency of any departmental enquiry against him, has to be considered for such promotion on his exoneration with effect from the date of his juniors were promoted. Digamber Lal Jain v. State of Haryana, 1982 (2) SLJ 536: (1983) 1 SLR 142, 143 (P&H). However in case of undue delay in initiating the disciplinary proceedings it was held that such pendency cannot stand in the way of promotion. State of Punjab v. Chaman Lal Goyal, 1995(2) SCC 570: 1995(1) UJ 552: 1995(29) ATC 546: 1995(1) SLR 700: 1995(2) SLJ 126: 1995(2) LLJ 679: 1995(70) FLR 834. Similarly denial of promotion due to pendency of departmental inquiry for seven years was held to be not proper and directions were given for promotion from the date on which juniors were promoted. N.H. Mehta v. State of Gujarat, 2002(3) SLR 768 Guj. 35. Non-consideration for Promotion for being Punished for Insubordination — The fact that the appellant was once suspended and punished for some charge of insubordination in a disciplinary inquiry should not and cannot by itself disqualify him for promotion, if he was otherwise suitable for being promoted, because he was exonerated from the charge on appeal. Ramanaryan Chand v. State of Rajasthan, 1981 (1) SLR 85. 36. Non-promotion for Remarks in Confidential Report — (i) Remarks in character roll were not communicated to the petitioner and his case was not considered

148


[R . 11

for promotion. Impugned order of promotion quashed. Vaidyanath Prasad v. State of Bihar, 1969 SLR 648; P.R. Mohanty v. Union of India, 1975 (1) SLR 230: S.R. Kesharwani v. State of M.P., 1978 (1) SLR 627: 1976 SLJ 173; H. Veerabhadrappe v. Deputy Commissioner, Raichur, 1980 (2) SLR 62: 1980 SLJ 602; M.S. Sharma v. State of A.P., 1982 Lab IC 619; Rakesh Pal Rana v. Union of India, 2002(1) SLR 643 Gau. High court is not right in holding that order of compulsory retirement is malafide and is in effect of an order of punishment. See State of Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1988(1) SLR 67: (1998) 1 SCJ 305. (ii) Supreme Court in Parvez Qadir v. Union of India 1975 (1) SLR 4: 1975 SLJ 130 held, “We do not think that the method of selection based on past performance as disclosed by the confidential records is not the proper method for adjudging suitability of the officer concerned.” The reporting officer had described the petitioner as a mediocre officer and had cast doubts about his moral character. These remarks had been duly communicated to the petitioner earlier. Further reports were of the same character which were also communicated to him. The order promoting his juniors who had better record was upheld. Bansi Ram Sharma v. State of H.P., 1982 (1) SLJ 140: 1982 (1) SLR 378. Adverse entry prior to promotion or putting of efficiency bar of picking up of higher rank, is not wiped out and the same has to be taken into consideration otherwise it will not be a case of examining the entire record. Banshi Lal Nayati v. State of Rajasthan, 1999(3) SLR 187 Raj. If a candidate was ignored for promotion for there being adverse remarks in his confidential report which was either not communicated to him or communicated at a stage when he could not put in a meaningful representation and for that reason the same were quashed or expunged, it shall be deemed that no such remarks were there in existence at the time when petitioner was ignored for promotion. The respondent was, thus, ened to consider the case of the petitioner from a date when he was wrongly ignored. Dharam Pal Panwar v. State of Haryana, 1999(3) SLR 161 P&H (DB). 37. No Enquiry is Required to Decide not to Promote — Under Rule 11 although withholding promotion is one of the penalties which can be imposed on a Government servant, the explanation thereto expressly provides that non-promotion of a Government servant after consideration of his case does not constitute a penalty. There was no question of the department having to hold an enquiry and then only to decide not to promote the appellant to the higher post. No question of breach of the principles of natural justice arises in such a situation. R.L.Butail v. Union of India, (1970) II SCWR 561: (1970) 2 SCC 876: 1970 SLR 926: (1971) 2 SCJ 566. 38. No Right to Claim Promotion Till Cadre Constituted — A cadre has to be expressly created. No legal right to claim promotion to a post in the department unless cadre is formally constituted and rules for recruitment, promotion etc., framed. M G. Sharan v. State of Bihar, AIR 1970 Patna 25.

R . 11]


149

39. Not Considered for Promotion as Took Part in Strike — Home Ministry issued orders that adverse entry in the character roll of an employee who took part in the strike would be taken into consideration for promotion or confirmation and all employees who were on unauthorised absence on September 19, 1968 would suffer the consequences of strike for five years. Held, the petitioner obviously became ineligible for promotion for five years as he had participated in the general strike and could not be considered for promotion in July 1969 when other persons were selected. Shiv Singh v. Union of India, 1973 (1) SLR 244: AIR 1973 SC 962: 1974(3) SCC 255: 1973 Lab IC 227. 40. Non consideration for promotion due to disciplinary punishment — The name of the employee not included in the list drawn for promotion as Deputy Tahsildars on the ground of punishment imposed after disciplinary proceedings was for stoppage of increment. It was held that the denial of promotion would not amount to penalty. Collector of Thanjavur Distt. v. S. Rajagopalan, 2000(9) SCC 145: 2000(3) JT 376: 2000(2) SLR 552: 2000(2) LLN 415: 2000(85) FLR 381. Once an order of punishment is ed finally, the delinquent would only suffer the legal consequences arising from that order and it would not be permissible to go back to the charge to deny him promotional benefits. Otherwise it would amount to punishing a delinquent employee twice over for the same charge(s). Dhirendra Nath Saha v. State of Bihar, 1999(3) SLR 135 Pat. Reduction in basic pay by one stage in the time scale of pay on permanent basis, held to be major penalty under the rules but the High Court acting on the wrong concession of the counsel holding it to be minor penalty and directing for consideration for promotion. Held that when this mistake was pointed out to High Court it should have really reviewed its earlier order but it having failed to do so, the High Court judgment was set aside by Supreme Court. Oriental Insurance Co. Ltd. v. Gokulprasad Maniklal Agarwal, AIR 1999 SC 3407: 1999(7) SCC 578: 1999(2) LLJ 1413: 1999(4) LLN 22: 1999(83) FLR 361: 1999(5) SLR 485: 2000(3) SLJ 127. 41. Consideration of Case for Promotion Long Before Vacancy Arises — The right to have one”s case considered for promotion arises or can be claimed by a Government servant only when a vacancy arises in the promotional cadre and he occupies a position of seniority or sufficient seniority in the lower cadre which obliges the Government to take his case also into consideration. If, therefore, a person”s case for promotion is taken for consideration long before a vacancy arises the appointing authority is actually trying to confer upon him a right which he does not then possess. N. Sreenath v. State of Mysore, 1973 SLJ 41: 1972 SLR 449; Surendra P. Gupta v.D.E.S.U (1973) 1 SLR 227. 42. Pleading Cause for Promotion by M.L.A. — Vacancies in Bihar Junior Civil Service were to be filled- up by promotion giving chances to non-gazetted government servants of all Departments. Two M.L.A.”s wrote a letter to the Minister and advocated the cause of R.7. The Minister directed to send five names and indicated the preference of R.7 at No. 2 R.7 applied to Chief Engineer that adverse entry in his character roll may be expunged. The Chief Engineer rejected the prayer. An M.L.A. wrote a letter to the Minister complaining about the allegedly illegal and unjustifiable

150


[R . 11

adverse entry made against R. 7 and the said entry was expunged. Untwala J., observed “The facts are coercively telling to invite the remark that R.7 instead of doing work in the office to the satisfaction of his own office bosses was out to please some Minister and of the Legislature and sought their help to pull him out of the ditch in which he found himself on the opinion of his bosses, the Chief Engineer, the Deputy Secretary and the Secretary”. Order set aside and Government ordered to reconsider the matter. Shyam Sunder Sen v. State of Bihar, AIR 1972 Patna 44. 43. Promotion, Higher Educational Qualification: No proof of more merit — Mere possession of higher educational qualifications cannot by itself be taken to be proof of more merit in a particular officer. Dr. Kartar Singh v. State of Punjab, AIR 1970 Punjab 112 (FB); Karmon Devi v. State of J & K, 1970 SLR 878; S. Joginder Singh Grewal v. State of Punjab, 1970 SLR 892. 44. Promotion, Keeping of in Abeyance — A well established proposition in the matter of enforceability of service conditions is that promotion can never be claimed as a matter of right. At the same time, the constitutional principle of equality enshrined in Articles 14 and 16 requires that where occasion arises for consideration the competing claims for promotion of more Government servants than one, each one of them is entitled to his case being considered on merits, The power to keep such consideration in abeyance or to postpone actual grant of promotion which might otherwise be available to a person is a power which curtails the rights and the constitutional protection thereof appertaining to the position of a public servant. B. Chandra Gupta v. Chairman, P&T Board, 1970 SLR 284: 1970 Lab IC 945 (Mysore). 45. Promotion, Principles of Natural Justice Cannot be Applied — Principles of natural justice cannot be applied to matters of promotion which are purely istrative in nature. There was no question of giving a reasonable opportunity to the Government servant of being heard before promotion is refused to him unless the appointing authority withholds promotion by way of penalty. Lal Chand Pargal v. Director, NES, AIR 1970 J & K 57 (FB); T.K. Sukumaran v. State of Kerala, 1981 (1) SLR 332. 46. Punishment of Censure no bar for Promotion — Censure by itself is not a ground for overlooking seniority in the matter of promotion. S. Mukandan Menon v. State of Kerala, 1970 SLR 586. 47. Departmental Enquiry and Promotion — By now, it is well laid down that a public servant whose consideration for promotion has been ed over on of the pendency of any departmental enquiry against him, has on his exoneration, to be considered for such promotion with effect from the date his juniors were promoted. Digambar Lal Jain v. State of Haryana, (1983) 1 SLR 142, 143 para 1: (1982) 2 SLJ 536 (P&H). 48. Promotion and sealed cover procedure — When a departmental proceedings is already pending but no punishment has been inflicted upon and the question of promotion of the delinquent government servant arises then the Departmental Promotion Committee can adopt a sealed cover procedure which is well known in the service jurisprudence. But if the departmental proceeding culminates in

R . 11]


151

imposition of a punishment on the delinquent, the question of reconsideration of the delinquent”s case for promotion would not arise at that stage. State of Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1) LLN 35. Disciplinary proceedings in the first enquiry ended in employee”s favour but another departmental enquiry was initiate by the time the sealed cover was to be opened. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the Disciplinary Enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any Disciplinary Enquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. Held that the mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the seal was opened to give effect to it, another departmental enquiry was started by the department, would not come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. Delhi Jal Board v. Mahinder Singh, AIR 2000 SC 2767: 2000(7) SCC 210: 2000(2) LLJ 1604: 2000(5) SLR 274: 2000(4) LLN 560: 2000(87) FLR 130 In another case allegation was that charge sheet was deliberately issued and interim relief of promotion pending petition before the Tribunal was sought and granted. Held that the question whether the charge-sheet was deliberately issued to prompt the Departmental Promotion Committee to take recourse to the “Sealed Cover Procedure” is a question of fact which has yet to be decided by the Tribunal on merits on the basis of the evidence which might be led by the parties. That being so, it can hardly be made a basis for interim relief. State of Madhya Pradesh v. J.S. Bansal, 1998(3) SCC 714: AIR 1998 SC 1015: 1998(1) JT 514: 1998(78) FLR 600: 1998(1) SLR 773: 1998(1) LLJ 1221: 1998(2) SLJ 274: 1998 Lab IC 998: 1998(3) LLN 58. However in another case due to pendency of disciplinary proceedings sealed cover procedure was adopted and minor penalty was imposed by the disciplinary authority. In regard to the date of promotion it was held that employee concerned can be considered for promotion on prospective basis from a date after the conclusion of the departmental proceedings. State of Madhya Pradesh v. I.A. Qureshi, 1998(9) SCC 261 see also Union of India v. J.K. Goel, 1995 Supp (3) SCC 161: 1997(10) JT 526: 1995(3) Scale 550: 1995(2) UJ 179: 1995(30) ATC 614. If on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name,

152


[R . 11

if he is found meritorious and suitable, has to be brought on the select list and the “sealed cover” procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a “sealed cover” only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been ed by the appropriate authority. Union of India v. Sudha Salhan, 1998(3) SCC 394: AIR 1998 SC 1094: 1998(1) JT 622: 1998(1) SLR 705: 1998(5) SLR 473: 1998(2) SLJ 265: 1998(2) LLJ 241: 1998 Lab IC 957: 1998(2) LLN 385. 49. Promotion, “Next Below Rule” Explained — An officer on deputation in another department on reversion to his parent department was entitled to be restored to the position he would have occupied in his parent department had he not been deputed. As he rendered satisfactory service and was considered fit for obtaining increments and promotions in the new department, he should be deemed to be fit for promotion in the parent department and was entitled to promotion in that department, when an officer next below to him there was getting promotion based on seniority-cum-merit. In official language, this is the “next below rule” under which an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department of the officer next below him there is being promoted. State of Mysore v. H.M. Bellay, (1964) 7 SCR 471: AIR 1965 SC 868: (1965) 1 SCJ 311. 50. Promotion on the Basis of Seniority-cum-merit or Fitness — (i) Recruitment rules provided that promotion should be made on basis of seniority-cumfitness. Post, not a selection post. Eligible persons be considered. Government ordered to consider case of respondent on the date other respondent was promoted. Government of India v. C.A. Balakrishnan, 1975 (1) SLR 31: 1975 SLJ 250: AIR 1975 SC 1498: 1975(3) SCC 256; K. A. George v. General Manager, Telecommunications, 1982 (2) SLJ 92. For “Two Stream Concept” in promotion see Union of India v. W.S. Chona, AIR 1998 SC 2919: 1998(2) SCC 213: 1997(9) JT 347: (1998) 1 SCJ 336. (ii) A Public servant placed in the list of seniority where selection for promotion to the next higher grade is on the basis of seniority-cum-merit, is entitled, on the plea that list is contrary to rules governing seniority, to claim relief on the footing that he is deemed equality of opportunity in matters related to employment Union of India v. V.J. Karnik, (1970) II SCWR 480: 1970 SLR 813. 51. Promotion cannot be Claimed by Seniority Alone — Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties in the higher post, he may be ed over and an officer junior to him may be promoted. State of Mysore v. Syed Mahmood, (1968) 2 SCJ 13: (1969) 2 SCWR 158: 1968 SLR 333: AIR 1968 SC 1113: 1968(3) SCR 363; State of Mysore v. C.R. Seshadri, AIR 1974 SC 460: 1974(3) SCR 87: (1974)4 SCC 308: 1974 (1) SLR 407: 1974 SLJ 209: (1975) 1 SCJ 64; L.B. Lall v. State of Bihar, 1975 Lab IC 1476; G.C. Broca v. State of J&K, 1981 (3) SLR 403 (SC).

R . 11]


153

52. Promotion as Addl. District and Sessions Judge — Once it is found that experience as Civil Judge Class I at least for a short period is a necessary qualification for promotion as Addl. District and Sessions Judge and that such a requirement has a rational relation to the question at issue, it would be surprising to hold that a man, who again and again had been found unfit to be posted as Civil Judge Class I in comparison with others who were his juniors in the service, his claim for promotion should be decided not on the basis of the date on which he was found fit to exercise the power of Civil Judge Class I, but on the basis of the date of his entry into service. Registrar of High Court v. B.A. Nigam, AIR 1973 SC 1271: 1973(3) SCR 878: 1973(4) SCC 219: 1973 SLJ 752. Governor accepting the recommendations of the High Court superseding the petitioner appointed other subordinate Judges as Addl District Judge. There is abundant material on record to show that the case of petitioner was fully considered by High Court and he was not considered fit for promotion. Government also considered the case of petitioner. Articles 14 and 16 are not attracted. Rameshwar Prasad v. State of Bihar, 1980(1) SCR 456: AIR 1980 SC 104: 1979(4) SCC 368: 1980 Lab IC 1: 1979(2) SLR 390: 1979 SCC (Lab) 371: 1979 BLJ 597: 1980(1) SCWR 116. Also see Commentary on Rules 8 and 9. 53. ”Seniority-cum-fitness” “Seniority-cum-merit”, and “Merit-cumseniority” Principles of — “Seniority-cum-fitness” principle implies that the senior person, unless unfit should get the promotion. “Seniority-cum-merit” implies that seniority is the primary consideration with fitness as the ing concomitant. When merit is the dominant principle the rule of “merit-cumseniority” or “merit with due regard to seniority” is applied. Where promotion is by seniority merit takes the second place, but when it is a selection merit takes the first place. The principle of senioritycum-fitness has been generally applied at the lower levels of service where the duties are of a routine nature. It has also been applied in promotions from a junior scale post to a senior scale post within the same service. But when the question arises of appointment to a higher service consisting of posts carrying superior responsibility, the emphasis shifts from “seniority-cum-fitness” to “merit-cum-seniority”. Hari Datt Kainthla v. State of Himachal Pradesh, 1974 (1) SLR 208 (FB): 1974 SLJ 525. On appeal the Supreme Court held that if there was no rule and the High Court proceeded to adopt merit-cum-seniority, or seniority-cum-fitness as a criterion for recommending promotions from subordinate judges to the post of District Judges neither of which appears to violate either Article 233 or Article 16 or any other constitutional mandate or any statutory rule, it would be futile to proceed to examine what ought or possible criterion should really govern the decision for recommending persons from subordinate judicial service for promotion to the post of DSJ/ADSJ. Hari Datt Kainthla v. State of H.P., AIR 1980 SC 1426: 1980(3) SCR 364: 1980(3) SCC 189: 1980 Lab IC 825: 1980(2) SLR 154. Where senior persons of good merit are ignored, the authorities are expected to at least make such kind of a record, so as to satisfy the minimum basic requirements of fair consideration. It is also for the reasons that some material should be available before the Court in the event such appointments are questioned and are subjected to

154


[R . 11

judicial review. Lack of sufficient material itself indicates higher decree of arbitrariness in such action. Sudha Suri v. Union of India, 2002(1) SLR 665 P&H (DB). 54. Promotion to Selection Post: (i) Not a Matter of Right — Appointment or promotion to a selection post is not a matter of right. Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910: 1968(1) SCR 111: 1967 SLR 906: 1968(2) LLJ 830: (1968) 1 SCJ 672; Guman Singh v. State of Rajasthan, 1971 Supp SCR 900: 1971(2) SCC 452: 1971(2) SLR 799: 1972 Lab IC 1295: (1973) 1 SCJ 267; Mir Ghulam Hussen v. Union of India, AIR 1973 SC 1138: 1973(4) SCC 135: 1973 Lab IC 795: 1973 (1) SLR 953. When the promotion is in respect of a “selection post” and the principle to be applied is “merit-cum-seniority”. The principle of seniority-cum-fitness was to be followed for promotion to the post of Research Officer, the departmental rules clearly showed that the promotion was in respect of a “selection post” and the promotion was to be made on the basis of the inter-se-merit of the eligible candidates. In that view of the matter, it was held that a candidate is not entitled to get promotion to the post of Research Officer on the strength of seniority alone. Central Council for Research in Ayureda & Siddha v. K. Santhakumari, AIR 2001 SC 2306: 2001(5) SCC 60: 2001(1) JT (Supp) 411: 2001(4) SLR 651 (SC): 2001 Lab IC 2073: 2001 AIRSCW 2155: 2001(4) Andh LT 9: 2001(2) Ker LT 775: 2001 SCC(L&S) 772. (ii) Seniority — Seniority by itself is not a sufficient qualification for promotion to a selection post. Selection is to be on merit primarily and regard to seniority is due to be given only when merit is equal. Harinandan Sharan Bhatnagar v. S.N. Dixit, (1969) 2 SCJ 862: AIR 1970 SC 40: 1970(1) SCR 421: 1969(2) SCC 245: 1969 SLR 468; R.L. Butail v. Union of India, (1970) II SCWR 561: 1970 SLR 926: (1971) 2 SCJ 566; N.P. Mathur v. State of Bihar, 1971 SLR 335: AIR 1972 Patna 93; Dr. Jai Narayan Misra v. State of Bihar, (1970) II SCWR 687; Abdul Hamid Matu v. State of J&K, 1974 SLJ 232; Union of India v. S.K. Srivastava, 1979 (3) SLR 724. (iii) Merit — It is beyond any debate that merit counts foremost in the matter of promotion to the selection grade post. Dr Hari Prasad v. State of Bihar, AIR 1972 Patna 4; Lal Chand Pargal v. Director NES, AIR 1970 J&K 57; G.M. Dar v. State, AIR 1970 J&K 90; Union of India v. Durgadas, AIR 1978 SC 1132: 1979(1) SCC 59: 1978(2) SLJ 108(1): 1978 Lab IC 966. Infliction of the punishment of withholding of increments is a relevant factor to be taken into in assessing the merit and ability of the person concerned. Kerala State Electricity Board v. T.S. Sahasranaman, 1978 (1) SLR 322. In relation to the promotion of the Private Secretaries of the Judges, Chief Justice of the High Court in September 1991 fixed the principle and directed that “the criteria for promotion shall be merit-cum-seniority to be adjudged with reference to confidential records and dictation-typing and interview tests. Leave and attendance records shall also be taken into consideration”. When this criterion was challenged It was held by Supreme Court that the Private Secretaries to the Hon”ble Judges play an important role in taking down dictations and writing judgement and, if merit is not given its due consideration and appointments are made on the basis of seniority, then it

R . 11]


155

would be difficult for any Judge to discharge his obligations. Hon”ble Chief Justice, High Court of Bombay v. B.S. Nayak, 2001(9) SCC 763: 2001(4) SLR 31 (SC): 2001(5) JT 561. (iv) Authority who can Make Selection — It is well settled that it is only the authority vested with the power and jurisdiction who would make the selection. If selection is made by any other authority then that would be without jurisdiction and void. Sachidananda Mohanty v. Union of India, AIR 1971 Orissa 6. (v) istrative Instructions — Government has the power to issue istration Order governing the service conditions of its employees in the absence of any statutory provisions governing the field. M.M. Dolichan v. State of Kerala, AIR 2001 SC 216: 2001(1) SCC 151: 2000(2) JT Supp 571: 2001 Lab IC 66: 2000 AIRSCW 4104: 2001(1) ESC 115: 2001 SCC (L&S) 174: 2000(7) SLR 217. Where there are no statutory rules regulating the selection, there is no bar to the istration giving instructions regarding promotion as long as such instructions are not inconsistent with any rule of the subject. Lalit Mohan Deb v. Union of India, (1972) 1 SCWR 430: AIR 1972 SC 995: 1973(3) SCC 862: 1972 SLR 411: (1973) 2 SCJ 92. Right of consideration for promotion available under statutory rules cannot be taken away by an istrative order which is in the nature of a suggestion to the Government to exclude a particular category of people from consideration. Provisions of statutory rules cannot be taken away by a suggestion of the executive until and unless the rules are appropriately amended. N.K. Pankajakshan Nair v. P.V. Jayaraj, 2001(3) SLR 580 (SC): 2001(4) JT 406: 2001(2) KLT 141. 55. Promotion by Selection — In the case of a promotion by selection, the merit and suitability of the officer in all respects to hold the promotional post in the public interest, irrespective of his seniority is the primary factor. Seniority becomes relevant only when the merit of the two or more eligible officers is found to be equal in all respects and not otherwise. Vijayadevraj Urs v. G.V. Rao, 1982 (2) SLJ 399. Where there is no statutory rule requiring D.P.C. to give its reasons for the selection, the doctrine of speaking order be not extended to the selection. S.K. Chandrika v. Union of India, 1982 (2) SLR 647: 1982 Lab IC 1688. 56. Promotion, Reasonable Classification for — There can be a reasonable classification of employees for the purposes of appointment or promotion. M.C.Srinivasan v. Collector of Central Excise, AIR 1970 Mysore 238; State of Kerala v. N.M.Thomas, 1976 (1) SLR 805 (SC): AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310. 57. Rules of Classification — The State is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in services and the classification need not be scientifically perfect or logically complete. Ganga Ram v. Union of India, AIR 1970 SC 2178: 1970(3) SCR 481: 1970(1) SCC 377: 1970 SLR 755: (1970) 2 SCJ 584. 58. Promotion: Community-wise Unconstitutional — Distribution of appointments, posts or promotions community-wise is contrary to the constitutional

156


[R . 11

guarantee under Articles 16(1) and (2) and is not saved by clause (4). Triloki Nath Tiku v. State of J&K, 1969 SLR 748: (1969) 1 SCJ 306: AIR 1969 SC 1: 1969(1) SCR 103; Makhanlal Waza v. State of J&K, 1971 (2) SLR 294: AIR 1971 SC 2206: 1971(3) SCR 832: 1971(1) SCC 749. 59. Reservation of Posts for of Scheduled Castes, Scheduled Tribes and Backward Classes — Article 335 of the Constitution provides:— “The claims of the of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of istration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.” Article 16(4) of the Constitution provides:— “Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” Reservation can be made not merely to initial recruitment but also to the posts to which promotions are to be made. The reservation can also be provided for selection posts as well as for non-selection posts. The reservation, however, is to be made consistently with the maintenance of the efficiency of istration. If they are unfit for post, they cannot claim to be appointed to the service despite reservation. The extent of reservation to be made is primarily a matter for the State to decide. The reservation must be only for the purpose of giving, adequate representation in the service to the Scheduled Tribes and Backward Classes. The burden of establishing that a particular reservation made by the State is offensive to Article 16(1) is on the person who takes the plea. State of Punjab v. Hira Lal, (1971) 2 SCJ 471: AIR 1971 SC 1777: 1971(3) SCR 267: 1970(3) SCC 567: 1971 (2) SLR 98; State of Kerala v. N.M.Thomas, 1976 (1) SLR 805 (SC): AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310; Akhil Bhartiya Soshit Karmchari Sangh (Railway) v. Union of India, 1981(2) SCR 185: AIR 1981 SC 298: 1981(1) SCC 246: 1980 Lab IC 1325 1980(3) SLR 645: 1981(1) LLN 27: 1980 SLJ 734: 1981 SCC (Lab) 50. As per Article 16(4) which carves out a separate field for itself from the general sweep of Article 16(1) which guarantees equality of opportunity in matters of appointments in Government services to all citizens of India, the reservation for these categories in employment has to be achieved by earmarking requisite percentage of posts for the reserved category of candidates and by pitch forking these posts on roster points on requisite points roster and when such a roster takes full cycle, posts earmarked on reserved points will enable the requisite reserved category of candidates to fill up these posts. After that is done, the roster would be treated to have achieved its purpose. When posts in a cadre are to be filled in from two sources whether the candidate comes from the source of departmental promotees or by way of direct recruitment once both of them enter a common cadre their birth marks disappear and they get completely integrated in the common cadre. This would be in consonance with the thrust of Article 16(1) of the Constitution of India. No question of exception to the said general thrust of the constitutional provision would survive as Article 16(4) would

R . 11]


157

be out of picture in such a case. State of Punjab v. R.N. Bhatnagar, 1999(2) SLR 552 (SC). If the persons belonging to open class have reaped the benefit in a previous year on of non-availability of candidates belonging to Scheduled Castes and Scheduled Tribes they cannot complain that during the subsequent year there was discrimination or excessive reservation if more number of posts were made available to the reserved category to compensate the vacancies which they had lost during the previous year. T.S.Chandrasekhariah v. Coffee Board, 1982 Lab IC 391. 60. Temporary Exemption from Test for Promotion for of Scheduled Castes and Scheduled Tribes — Rule providing an extended period of two years to of Scheduled Castes and Scheduled Tribes for ing the special test for promotion does not violate Article 14 or Article 16(1) and (2). State of Kerala v. N.M. Thomas, AIR 1976 SC 490: 1976(1) SCR 906: 1976(2) SCC 310: 1976 Lab IC 395: 1976 (1) SLR 805; Lakshman Prasad Sinha v. State of Bihar, 1979 (3) SLR 389. 61. Promotion or Demotion, Powers of Court — The power to promote an officer belonging to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. State of Mysore v. C.R.Seshadri, 1974 SLJ 209: AIR 1974 SC 460: 1974(3) SCR 87: 1974(4) SCC 308: (1975) 1 SCJ 64: 1974 (1) SLR 407. Promotion cannot be treated as a consequential relief per se when the court itself had restricted the relief given to the petitioner to the “monetary benefits” and all such benefits had been given to him. Chet Ram Sharma v. State of Haryana, 2001(3) SLR 515 P&H. Any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a Court decides that in order only to remove hardship such roster point promotees are not to face reversions, then it would be, necessary to hold — consistent with interpretation of Articles 14 and 16(1) — that such promotees can not plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. It was held that while Courts can relieve immediate hardship arising out of a past illegality, Court cannot grant additional benefits like seniority which have no element of immediate hardship. Ajit Singh v. State of Punjab, AIR 1999 SC 3471: 1999(7) SCC 209: 1999(7) JT 153: 1999 Lab IC 3128: 1999(4) LLN652: 1999(5) SLR 268. The High Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court is to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the candidate should have been promoted on the relevant date and so what consequential benefits should be allowed to him. State of Mysore v. P.N. Nanjundiah, 1969(3) SCC 633: 1969 SLR 346

158


[R . 11

(SC) followed in Government of Andhra Pradesh v. A.P. Jaiswal, 2000(6) SLR 734 (SC). Where the Court was satisfied that the respondent was not only to be considered for promotion to the promotional posts, but was also entitled to arrears of pay and allowances since he had been deprived of those benefits not on of any fault of his but on of the fault of the authorities concerned; Held that in exercise of writ jurisdiction, the Court may mould the relief having regard to the facts of the case and interest of justice. Food Corporation of India v. S.N. Nagarkar, AIR 2002 SC 808: 2002(2) SCC 475: 2002(1) JT 443: 2002 AIRSCW 466: 2002(3) Andh LT 9: 2002(92) FLR 1043: 2002 SCC(L&S) 312: 2002(1) ESC 110: 2002(1) SLR 739 (SC). 62. Overlooking for Promotion Amounts to Punishment — If by preparation of a long list of persons eligible for promotion the consideration of a person”s case for promotion is postponed for the currency of the list, i.e. until the list is exhausted by promoting persons mentioned therein to vacancies as and when they arise, it would amount to actually postponing his promotion for the said indefinite period and in fact amounts to punishment. N. Sreenath v. State of Mysore, 1973 SLJ 41; 1972 SLR 449. 63. Separate Units Combined : Difference in Promotional Opportunities Unconstitutional — The two wings were integrated into one service and Rules, provided for the promotion on the basis of seniority-cum-merit. Government issued notifications fixing up the cadre strengths, reduced the promotional posts available to P.W. s unit to a very low figure as compared with promotional opportunities open to the officers in the other wing. Notifications struck down as violative of the constitutional guarantee given by Articles 14 and 16(1). State of Mysore v. M.H. Krishna Murthy, AIR 1973 SC 1146: 1973(2) SCR 575: 1973(3) SCC 559: 1973 SLJ 168: (1974) 1 SCJ 54. 64. Writ to Challenge Promotion Constitutes no Misconduct — The act of petitioners in presenting writ petitions before High Court and their act in persuading the other colleagues to as writ petitioners constitutes no misconduct and the action of the respondent in instituting the disciplinary enquiry and finally imposing penalty against the petitioner is vindictive action by the disciplinary authority for which he can be punished under the provisions of the Contempt of Courts Act. V.K. Parameshwaran v. Union of India, 1982 (1) SLJ 516: 1982 Lab IC 383: 1981 (3) SLR 164. See also Vimal Kumari v. State of Haryana, 1998(4) SCC 114: 1998(2) JT 111: 1998(2) SLR 230: (1998) 2 SCJ 99. DEPARTMENTAL EXAMINATION OR TEST FOR PROMOTION 65. Holding Test Examination for Promotion — (i) The ing of departmental examinations is not really a qualification but only what amounts to removal of an obstacle to promotion which may otherwise be claimed by a civil servant has to a departmental examination in order to become entitled to promotion to a higher post, the material date on which the question whether he has or has not ed that departmental examination has to be considered is the date on which the promotion is made. It would be taking an extremely unreasonable view to judge the eligibility of a civil servant for promotion with reference to the date on which the vacancy arose. T. Shair Saheb v. State of Mysore, AIR 1971 Mysore 26. For promotion of employee

R . 11]


159

lower in seniority list see Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10) JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260. (ii) Statutory rules under Article 309 did not provide for test for promotion of clerks to the post of assistant. istrative instruction issued to include a qualification test for promotion of clerks to assistants. Test could not be regarded as an essential prerequisite for such promotion. P.C. Wadhwa v. Union of India, AIR 1964 SC 423: 1964(4) SCR 598: 1964(1) LLJ 395; State of Haryana v. Shamsher Jung Shukla, 1968 SLR 162: 1968 Cur LJ 72; Mrs J.K. Pritam Singh v. State of Punjab, 1967 SLR 251; Lalit Mohan Dev v. Union of India, AIR 1970 Tripura 10; See other view in Harjit Singh v. I.G.Police, Haryana, 1969 SLR 845: 1969 Cur LJ 966. (iii) Under the rules on examination or test was provided before being considered for promotion. Office order was issued prescribing test in order to guide the making of promotions. The executive instructions are void as they amount to an alteration of the rules prescribed. State of Haryana v. Shamsher Jung Bahadur, (1972) 1 SCWR 874: AIR 1972 SC 1546: 1973(1) SCR 249: 1972(2) SCC 188: 1972 SLR 441: (1973) 2 SCJ 582; State of Punjab v. Madan Singh, (1972) SCWR 879: 1972 SLR 446: AIR 1972 SC 1429: 1974(3) SCC 90: (1973) 1 SCJ 82. (iv) Departmental examination could not be prescribed for promotion to the next higher rank which was not there prior to the reorganization of the States. Mohammad Bhakar v. V. Krishna Reddy, 1970 SLR 768 (SC); Lehna Singh v. Punjab State, 1970 SLR 844: AIR 1971 Punjab 198; State of Mysore v. R. Basappa, 1980 (1) SLR 845 (SC). (v) An employee on failure to departmental examination may be reverted. Prem Singh v. State of Punjab, 1980 (3) SLR 278. (vi) An employee cannot be reverted for failure to the examination where the examination is not held. State of Maharashtra v. Chandrakant Anant Kulkarni, AIR 1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130: 1981 SCC (Lab) 562: 1981 (3) SLR 326 (SC): 1981 (2) SLJ 280: 1982 (1) SLR 697. 66. Viva Voce, Written Test — (i) The adjustment of suitability by method of viva voce is unsatisfactory. Janki Prasad Parimoo v. State of J&K, AIR 1973 SC 930: 1973(1) SCC 420: (1975) 2 SCJ 50: (1973) 3 SCR 236: 1973 (1) SLR 719; Parvez Qadir v. Union of India, 1975 (1) SLR 4: 1975 SLJ 130. The selection based upon the bare interview without laying down any objective criteria for the guidance of the Selection Committee, appears to be clearly illegal. Dr Dhrubashankaran v. Osmania University, 1980 SLJ 153. In B. W. Dhavan v. Union of India, 1973 SLJ 56, it was held that written test is more appropriate to test the candidate objectively than a viva voce. See also Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10) JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260. (ii) However, by subsequent rulings it is now well recognized that while a written examination assesses a candidate”s knowledge and intellectual ability, an interview test is valuable to assess a candidate”s overall intellectual and personal abilities. The weight to be given to the interview test should depend on the requirement

160


[R . 11

of the service to which recruitment is made. Lila Dhar v. State of Rajasthan, 1982(1) SCR 320: 1981(4) SCC 159: AIR 1981 SC 1777: 1981 Lab IC 1515: 1981(3) SLR 56. (iii) Fixing 50 percent marks in interview as minimum qualifying marks for selection is unreasonable and hold (Public Service Commission was directed to revise the list in accordance with proper criteria as indicated in the judgement). L.V. Ashara v. Gujarat Public Service Commission, (1984) 3 SLR 411, paragraph 8, 13 and 14. (iv) Unless there is a question of mala fides, court cannot go into questions put by the Selection Committee at an interview and decide whether the questions were proper. Javed Rasool Bhat v. State of J & K, (1984) 1 SLR 543, 549, para 5 (SC). (v) It is not for the court to lay down whether an interview should be held at all, or how many marks should be allotted for the interview test. Of course, the marks must be minimum, so as to avoid charges of arbitrariness, but not necessarily always there may be posts and appointments where the only proper method of selection may be an interview. Javed Rasool Bhal v. State of J & K, (1984) 1 SLR 543, 553 para 8 (SC). (vi) A selection made on the basis of the written test held for the purpose of “short listing” followed by an oral test in the shape of interview held for assessing several other relevant questions or equipment of the candidate, referred to in the “Note on Interview” is perfectly valid and does not violate Article 14 of the Constitution. Dr P.G. Reddy v. B. Laxman, (1983) 3 SLR 170, 181, 182 para 17 (AP). (vii) Allotment of “block marks” (i.e. 100 marks to the entire interview) is not itself illegal. Hanumanathappa H. v. Muniswamy, (1984) 3 SLR 778 (Kar) (DB). (viii) Persons whose near relations are candidates at an interview should not participate in the process of selection at an interview. Subhash Chander Sharma v. State of Haryana, (1984) 1 SLR 165 (P&H) (DB) (Case Law reversed). (ix) Interview cannot be allowed to play a dominant part (in the selection process). If a candidate is disqualified for not getting marks in interview, the rule would be void. Marks of interview and written test should be taken together. State Bank of Travancore v. Soumini, (1983) 3 SLR 299, 300, 301 para 4 & 5 (Ker) (DB). (x) A Public Service Commission is competent to hold a screening test for the selection of candidates for being called for interview. Further, there is no discrimination in requiring that those with post graduate qualifications or doctoral qualifications must also take the test. (1983) 2 SLR 363, 369, 370 paras 16 & 17 (Raj) (DB). DEPARTMENTAL PROMOTION, SELECTION COMMITTEE OR BOARD 67. Departmental Promotion Committee, Position of — D.P.Cs. are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the D.P.Cs. for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled by promotion, or that no officers are due for confirmation, during the year in question.

R . 11]


161

Union of India v. N.R. Banerjee, AIR 1997 SC 3761: 1997(9) SCC 287: 1996(11) JT 605: 1997(1) SLR 751: 1997(2) SLJ 103 The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. Delhi Jal Board v. Mahinder Singh, AIR 2000 SC 2767: 2000(7) SCC 210: 2000(2) LLJ 1604: 2000(5) SLR 274: 2000(4) LLN 560: 2000(87) FLR 130 The fact that the law permits the promoting authority to receive the law assistance of an independent body or a departmental selection committee does not mean that by appointing such a committee, the promoting authority can absolve itself of the obligation of applying its mind to the case of promotion of persons by selection. The ultimate application of mind to the selection must be by the promoting authority. N. Sreenath v. State of Mysore, 1973 SLJ 41: 1972 SLR 449. For guidelines followed by selection board for promotion and for challenge of selection without written test see Siya Ram v. Union of India, AIR 1998 SC 1470: 1998(2) SCC 556: 1997(10) JT 149: 1997(6) SLR 624: 1998 Lab IC 885: (1998) 1 SCJ 260.. 68. Selection Board or Promotion Committee, of — (i) Personal bias: Where one of the of selection board is also to be considered for selection, the decision taken by the Board cannot be considered as having been taken fairly and justly. Selection set aside. A.K. Kraipak v. Union of India, (1970) 1 SCJ 381: (1969) 1 SCWR 1122: AIR 1970 SC 150: 1970(1) SCR 472: 1969(2) SCC 240; V.N. Nadgir v. Union of India, 1970 SLR 134 (ii) No man shall be a judge in his own cause. Nageshwar Rao v. State of A.P., AIR 1959 SC 1376: 1960(1) SCR 580: 1960 SCJ 53. . (iii) Likelihood of bias — When one of the of the committee for preparing the list of candidates for appointment to the Indian istrative Service is son-in-law of one of the candidates, the petitioners could have legitimately believed there was a reasonable likelihood of bias in favour of father-in-law and to the detriment of the petitioners, because of the presence of son-in-law on the committee. Select list quashed. D.K. Khanna v. Union of India, 1973 SLJ 1345: AIR 1973 HP 3. (iv) Mala fide of — Every preference does not vitiate an action. If it is rational and unaccompanied by considerations of personal interest, pecuniary or otherwise, it would not vitiate a decision. For example, if a senior officer expresses appreciation of the work of a junior in the Confidential Report, it would not amount to bias nor would it preclude that senior officer from being part of the Departmental Promotion Committee to consider such junior officer along with others for promotion. G.N. Nayak v. Goa University, AIR 2002 SC 790: 2002(2) SCC 712 Where there is nothing to show the reporting officer and the reviewing authority, who were responsible for the adverse confidential reports, were of the promotion committee or were in any event responsible for the appellant not having been recommended, the selection cannot be said to have been done with any mala fide object. R.L. Butail v. Union of India, (1970) II SCWR 561: 1970 SLR 926: (1971) 2

162


[R . 11

SCJ 566; Mala fides have to be proved by reliable legal cogent evidence. D.K. Gupta v. Municipal Corporation, 1979 (3) SLR 416: 1978 SLJ 525. 69. Committee Not Validly Constituted — Screening committee which was not validly constituted made recommendations to Public Service Commission. Public Service Commission sanctioned the final list. Order set aside. Prithvi Raj v. State of Punjab, 1969 Cur LJ 30; Kenahiah v. State Level Recruitment Committee, AIR 1966 Mysore 36; Jagdish Pandey v. The Chancellor, University of Bihar, AIR 1968 SC 353: 1968(1) SCR 231: 1968 SLR 252: (1968) 1 SCJ 799. 70. Delay in constitution of the committee — By merely failing to nominate a member and not allowing the committee to meet, the Commission can”t be permitted to defeat the rights of the candidate. Held that even retirement cannot be a ground for refusing to consider the claim for promotion. The right to be considered had accrued in the year 1994-95. It was further held that the wrong done to the petitioner can only be remedied by one method viz. directing the respondents to do the needful on the hypothesis that he was in service at the relevant time. If the petitioner is found suitable for inclusion in the select list and if his turn for appointment comes against an available post in the promotion quota, he will be deemed to have been promoted with effect from the due date. Consequential reliefs shall ensure in accordance with the rules. Chaman Lal Lakhanpal v. Union Public Service Commission, 1999(1) SLR 671 P&H (DB). 71. Promotion Committee Proceedings, Claim of Privilege — Claim of privileges by Government under Section 123, Evidence Act unnecessarily invites suspicion when disclosure will be to its benefit. The tendency is hardly consistent with the open and democratic society that our Constitution is committed to build. Public matters should be made open to public scrutiny and it is only in cases which involve any danger to the security of the State that any documents should be withheld from the Courts. Ram Gopal v. Union of India, 1972 SLR 258 (Delhi); N.S. Panda v. Union of India, 1977 (2) SLR 589. 72. Promotion Committee, Disclosure of Proceedings of — The demand for disclosure of proceedings was not entertained not being bona fide demand under the circumstances of the case. R.L. Butail v. Union of India, (1970) II SCWR 561: 1970 SCR 926: (1971) 2 SCJ 566. 73. Promotion or Selection Committee Proceedings, Scrutiny or Review of — High Court does not sit as a court of appeal on the deliberations and recommendations of the D.P.C. Ram Gopal v. Union of India, 1972 SLR 258; D.K. Gupta v. Municipal Corporation of Delhi, 1979 (3) SLR 416: 1978 SLJ 525; Union of India v. Durga Dass, AIR 1978 SC 1132: 1979(1) SCC 59: 1978 Lab IC 966: 1978 (2) SLR 108; G.C. Dhiman v. State of H.P., 1979 (1) SLR 533; B.S.R Sharma v. Food Corporation of India, 1979 (3) SLR 495; Dr Mahendra Kumar Patni v. State of Rajasthan, 1983 (1) SLR 12. 74. Promotion Committee took into Consideration, Confidential Reports made by a Person who himself was in the Field for Promotion — The annual confidential reports relating to others were initiated by an officer who himself was an aspirant for promotion to a higher post along with them. It would not have been fair for

R . 11]


163

the D.P.C. to take into consideration such reports though they might have been revised by the higher authorities. Dr S.P. Kapoor v. State of Himachal Pradesh, AIR 1981 SC 2181: 1982(1) SCR 1043: 1982 Lab IC 9: 1981(4) SCC 716: 1981 (3) SLR 220: 1982 Lab IC 9. 75. Whether the Promotion Committee to give Reasons for Selecting or Rejecting a Candidate — In the absence of a rule (statutory or not) (and mandatory or otherwise), requiring recording of reasons, infirmity, cannot be attached to a select list merely because ex facie it does not give the reasons for the inclusion of some of the candidates therein and the necessary and resultant exclusion of others in the field of choice therefrom, if, and only if, the list is shown to be the outcome of application of mind by the Selection Committee. The doctrine of “speaking order” is not to be extended to this region of preparation of select list. T.K. Sukumaran v. State of Kerala, 1979 (3) SLR 623: 1980 Lab IC 1305; S.K. Chandrika v. Union of India, 1982 Lab IC 1688. The principle that istrative orders affecting the rights of the citizens should contain reasons, has no application on the procedure of selection committee unless the rules so require. Union of India v. Samar Singh, 1996(10) SCC 555: 1996(9) JT 184: 1997(75) FLR 493: 1996(6) SLR 732: 1997(1) SLJ 56: 1997(2) LLJ 321 76. Judicial review of reasons given by Committee — Promotion to the post of General Manager is governed by Rule 24 of the Employees Service Rules, 1979. Under the said rule the Selection Committee is required to recommend the suitable employee for promotion whom they consider fit. Suitability and merit being the criteria for promotion and respondent having been considered but being found unsuitable for promotion, the constitutional rights of being considered cannot be said to have been infringed. If the Department Promotion Committee has taken into consideration the fact that the respondent has not in fact served as t General Manager though he has been given notional promotion to the said post and, therefore, has not gained the necessary experience, it cannot be said that the ground is an extraneous ground for adjudging the suitability of the person for being promoted to the post of General Manager. It was also held that the Court is not entitled to assess the respective merit of the candidates for adjudging their suitability for being promoted and the only right the employee has, is a right of consideration. Orissa Small Industries Corporation Ltd. v. Narasingha Charan Mohanty, 1999(4) SLR 423: AIR 1999 SC 516: 1999(2) SCC 119: 1999(8) JT 501. 77. Recommendations of Promotion Committee not binding — Recommendation of Departmental Promotion Committee being advisory in nature are not binding on the Appointing Authority. It is open to the Appointing Authority to differ from the recommendation in public interest but while differing with the recommendation of D.P.C. the Appointing Authority must give the reasons. The authority is not required to communicate these reasons to the candidate but it may produce the necessary record containing reasons before the Court when the same are challenged. Union of India v. N.P. Dhamania, 1994(4) Scale 629: AIR 1995 SC 568: 1995 Supp (1) SCC 1: 1994(7) JT 465: 1994(5) SLR 757: 1994(28) ATC 738: 1995(1) SLJ 193: 1995(5) SLR 509: 1995 Lab IC 314.

164


[R . 11

78. Public Service Commission, Opinion of — The opinion of Public Service Commission is merely advisory. (Article 320). Ram Chandra Tripathi v. State of Orissa, 1970 Lab IC 160 (Orissa); Sri Krishna Agarwal v. State of M.P., AIR 1970 MP 162; Kashmiri Lal Bhatia v. Secretary, Haryana, P.S.C., 1973 (1) SLR 310. In another case it was held on consideration of relevant rules that where the selection committee consisting of persons with sufficient experience in the concerned field with the knowledge of job requirements and necessary qualifications selected the candidates after examining his qualification, held that the appointing authority has no power to cancel such appointment. State of Punjab v. Suman Lata, 1999(9) Supreme 320. 79. Ad hoc Promotion — (i) Promotion on an ad hoc basis does not give any right to the post. Govind Dattatray Kelkar v. Chief Controller of Imports & Exports, (1967) 1 SCWR 961: (1967) 2 SCJ 182: AIR 1967 SC 839: 1967(2) SCR 29; Dina Nath Pardesi v. State of H.P., 1981 (1) SLR 71. (ii) Even for an ad hoc promotion all eligible persons have a right to be considered. Mallinath Jain v. Municipal Corporation, 1973 SLJ 239: 1973 (1) SLR 413; Parmanand Garg v. Municipal Corporation, 1973 SLJ 293; Gurjit Singh Sabota v. State of Punjab, AIR 1975 SC 1915: 1975(4) SCC 687: 1975 SLJ 757: 1975 (2) SLR 516: 1975 Lab IC 1051. 80. Refusal to Accept Promotional Post — The Government servant who refused to accept promotional post offered to him for his own reasons cannot then be heard to complain that he must be given promotion post from the date on which the avenue for promotion opened to him. Dr N.C. Singhal v. Union of India, AIR 1980 SC 1255: 1980(3) SCR 44: 1980(3) SCC 29: 1980 Lab IC 710: 1980 (2) SLR 118: 1980 SLJ 408. 81. Supersede, Meaning of — The word “supersede” means to displace, or over, so as to appoint a successor or make way for another, to supplant. To take the place, room, or position of; to follow in place of; to replace; as the new bill is designed to supersede all previous bills; the new appointee supersedes a promoted (or dismissed) official. Union of India v. P.C.Bahl, 1968 Cur LJ 846: AIR 1969 Punjab 161; M.L. Trighatia v. State of Haryana, 1976 (1) SLR 20. CLAUSE (iii) Recovery from Pay of Pecuniary Loss 82. Recovery of Loss — (i) In cases where a departmental enquiry followed by the imposition of a penalty or recovery of loss caused to the Government from salary becomes impossible after a Government servant”s retirement from service, the Government still retains the right either to prosecute the Government servant in an ordinary criminal court if the misconduct amounts to a punishable offence or sue him in a civil court for recovery of loss caused to the Government by him on of negligence or other culpable conduct. R.S. Kalolimath v. State of Mysore, 1970 SLR 869; Asit Baran Choudhury v. Union of India, 1994 (7) SLR 518 (CAT Calcutta).

R . 11]


165

(ii) A contract between the employee and the Government for recovery of loss or damage consequent of any act, omission or neglect on the part of the employee is not against the rule of natural justice. State of Kerala v. M.C. Joseph, 1975 SLJ 605. (iii) Government had to pay as rent to transporter as delivery of goods was not taken in time and recovery was ordered from the pay of petitioner without considering his explanation. If certain explanation is furnished in the reply to show cause, the same has to be met with by ing a speaking order. Since the authority did not apply mind at all and ed the impugned mechanical order, the same was quashed. Deep Chand Sharma v. State of Haryana, 1981 (3) SLR 188. (iv) The petitioner was served with a charge sheet alleging that at the time of handing over charge by him, the stores were short to the tune of Rs 14,000. Petitioner submitted explanation. The petitioner was held liable for the recovery of Rs 8,000. No evidence was recorded nor any enquiry was held. Order ed was a non-speaking order hence set aside. Nand Kishore v. State of Punjab, 1983 (1) SLJ 43. Where permanent loss was caused to government by negligence of employee in supervisory work and negligence was not a direct cause of loss, recovery of loss from pay and retirement benefits as held excessive. Sudhir Kumar Das v. Union of India, (1988) 7 SLR 615 (CAT Calcutta). CLAUSE (iv) Explanation (ii) Withholding of Increments of Pay 83. Increment defined — An increment is granted to an employee in token of his serving the employer satisfactorily for a period of one year. Haryana State Cooperative Development Federation Ltd. v. Rajbir Singh, 1999(2) SLR 744 P&H (DB). 84. Advance Increment Discontinued — Government issued notification that non-gazetted officers other than new recruits who will work regularly during the strike period will be given an advance increment. Advance increment was given to persons who became entitled to it. After some time order was reviewed and advance increment discontinued. Order of discontinuance was held to be illegal and was vacated, as it had adverse civil consequences and cannot be ed without hearing. Appukuttan Nair v. State of Kerala, 1969 SLR 496 (FB). See also Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New Delhi). 85. Increments, Discrimination — Petitioners were J.B.T. Teachers in the Punjab Educational Service. They were promoted to the classical and vernacular cadres as Punjab Teachers. Pay Scales of teachers were revised and “Gyanis” etc. were allowed three advance increments. It was held that petitioners were also entitled to three advance increments. Jagdish Chander v. State of Punjab, (1984) 1 SLR 441 (P & H). Discrimination in the matter of stoppage of increment has also been frowned upon. Delinquent with four other persons charged with beating and some of the charges were proved but Disciplinary authority ed the order of dismissal of delinquent but order of stoppage of five increments in respect of others. It was held that it is

166


[R . 11

undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. Held that it was not open for the disciplinary authority to impose different punishments for different delinquents for same charge. State of Uttar Pradesh v. Raj Pal Singh, 2001 Supp (1) JT 44: 2001(4) SLT 294. 86. Increment and Moral Turpitude — Before Government servant is found guilty of a grave offence involving moral turpitude (intoxicating and disorderly behaviour) detailed inquiry under Kerala Civil Services etc. Rules. Rule 16 is necessary, even if the penalty imposed is a minor one. C Ramankutty Warriar v. State of Kerala, (1983) 1 SLJ 1: (1983) 1 SLR 608 (Ker). 87. Increment is Earned as a Matter of Course Unless Withheld — (i) An ordinary increment is earned as a matter of course even during disciplinary proceedings. Fundamental Rule 24 provides: “An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by the Central Government or by any authority to whom the Central Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments.” See also Jwala Prasad Singh v. State of Bihar, 1973 (1) SLR 546; Brahm Dev Seth v. Union of India, 1974 (1) SLR 680: 1973 SLJ 961. (ii) Withholding of Increment is a Penalty — The withholding of increment is by itself a penalty and could be imposed on good cause and that a civil servant was not liable to the increments being withheld merely because of the pendency of certain proceedings against him. Bhagwan Swarup v. Municipal Corporation of Delhi, 1967 SLJ 160. See also Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New Delhi). (iii) Withholding of Increment Simpliciter and Withholding of Increment with Cumulative Effect — Withholding of increment simpliciter and withholding of increment with cumulative effect have different meanings and implications as would be apparent on a reference to Rule 16(1A) of the Rules. Food Corporation of India v. State of West Bengal, 1981 (2) SLR 807; Alakendu Sarkar v. State of West Bengal, 1981 (2) SLR 33 (Cal). Stoppage of increments with cumulative effect is not a minor penalty but a major penalty. Punjab State v. Ram Lubhaya, 1982 (2) SLJ 62 (P&H). Withholding of increments for two years without cumulative effect was ordered. Entitlement to promotion during the currency of the penalty was at issue. Applicant was held to be entitled to promotion and increments, on the expiry of the punishment from the dates on which they had become due. Prem Singh Verma v. Union of India, (1993) 2 SLR 108 (CAT New Delhi).

R . 11]


167

Where the penalty imposed is stoppage of one increment without cumulative effect. It is not a major penalty and regular enquiry is not required under the rules. G.N. Sundaraja Achar v. Post Master, Kolar, (1990) 2 SLR 624 (CAT Bangalore). Where the penalty imposed is only the withholding of an increment for 3 years without cumulative effect, the pension is not effected. The pay will be restored after operation of the penalty. No enquiry is necessary. S. Jagannathan v. Member (Personnel), Telecom Board, (1989) 7 SLR 28 (CAT Madras). (iv) Increments Stopped for Conviction on Criminal Charge Though he was Given Benefit under Probation of Offenders Act — Petitioner was convicted under Section 324, Indian Penal Code but was given the benefit under the provisions of Section 4 (1) of the Probation of Offenders Act. Respondent asked the petitioner to show cause why penalty of stoppage of three increments be not imposed. The petitioner replied that he was protected under Section 12 of the P.O. Act and cannot be punished departmentally. The respondent imposed penalty of stoppage of three increments with cumulative effect. Since petitioner was not given opportunity of being heard nor was any enquiry held, the order was quashed. Zile Singh v. Sub-Divisional Officer, Telegraph, 1982 (1) SLJ 578: 1982 (2) SLR 225. 88. Increment Stopped for not ing Departmental Examination — (i) New rule added debarring sectional officers from earning their future grade increments till such time as they the departmental examination. Held, the Rule has no retrospective effect. O.P. Gupta v. State of Haryana, 1969 Cur LJ 688. (ii) ing petty tests after petrifying length of dull official service is an odd insistence except in important levels of work. State of Punjab v. Sham Lal Murari, AIR 1976 SC 1177: 1977(3) SCR 513: 1977(3) SCC 25: 1977 Crl LJ 964: 1977 CAR 188: 1977 CrLR(SC) 352: 1977 SCC(Cr) 410: 1976 Lab. IC 777. 89. Increment, Stoppage of, Speaking Order be ed — Speaking order should be ed. Dr B.K. Talwar v. State of Haryana, 1970 Cur LJ 579: 1970 SLR 732; Ram Das Chaudhary v. State of Punjab, 1968 SLR 792; Bhagat Raja v. Union of India, AIR 1967 SC 1606: 1967(3) SCR 302; M.L. Gera v. Chief Engineer, Irrigation Works, Punjab, 1973 (1) SLR 1076; Dr. P.K.Mittal v. State of Punjab, 1982 (2) SLR 267. The impugned order was in the following : “The explanation submitted by you has been considered and found unsatisfactory. The Governor of Punjab is, therefore, pleased to decide, in consultation with Punjab Public Service Commission, to withhold you at the first efficiency bar in the time scale of P.C.S. at the stage of Rs.... for a period of two years with cumulative effect from...”. The order was quashed not being a speaking order. Dalip Singh Sodhar v. State of Punjab, 1982 (2) SLJ 385. 90. Increment stoppage due to Absence from Duty — The delinquent was not serving in a disciplined force the police or military etc., therefore the punishment of removal was reduced to stoppage of two increments with cumulative effect and 25% back wages were granted. Gurnam Singh v. State of Punjab, 2001(3) SLR 604 P&H.

168


[R . 11

Similarly three annual increments of the delinquent stopped by Labour Court on of absence from duty, was affirmed. Brij Mohan v. Presiding Officer, 2001(3) SLR 354 P&H (DB). 91. Increment stoppage and Natural Justice — Charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiring officer having recorded his findings and thereafter the disciplinary authority having disagreed with the findings by recording the reasons therefore and ultimately awarding minor punishment of stoppage of one increment without cumulative effect, It was held that there was no procedural irregularity therein nor can it be said that there has been any violation of principle of natural justice. State of Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(2) JT 103: 1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1) LLN 35. 92. Increment when Becomes Due during Period of Notice to Retire Compulsorily — If an increment becomes due during the period of notice, that increment must be taken into , not only for the purpose of calculating the amount of salary to be paid in lieu of notice but also for determining pension. B.U. Venkataramaiah v. State of Mysore, 1971 Lab IC 985: 1971(1) SLR 72. 93. Postponement of Future Increment — If the effect of the order is the reduction of the petitioner to a lower stage, in the time-scale, it means the imposing of a major penalty. C. Veera Chowdaiah v. State of Mysore, 1973 (1) SLR 241: 1973 SLJ 700. 94. Entitlement on reinstatement — An employee ordered to be reinstated with continuity of service by the Labour Court after setting aside the order of removal from service, is entitled to all the notional increments during the period he was out of service and his pay has to be fixed accordingly. V. Ramachander v. Regional Manager, APSRTC, Nizamabad, 2001(1) SLR 292 AP. An increment is granted to an employee in token of his serving the employer satisfactorily for a period of one year. In a case where the employee had actually tendered a resignation and had left the service so as to start legal practice, the relationship of employer and employee had virtually terminated. In any case, even if the employee”s claim is subsequently accepted, the fact remains that he had not served the employer in any manner whatsoever. The employer had no occasion to watch his performance or to conclude that he had satisfactorily performed the duties. In this case, it was the itted position that the applicant was actually practising law and conducting cases in Courts. In this situation, it was held that he cannot be entitled to the benefit of increments in service for the period in dispute. Haryana State Co-operative Development Federation Ltd. v. Rajbir Singh, 1999(2) SLR 744 P&H (DB). Explanation (iii) Stoppage at the Efficiency Bar 95. Efficiency Bar, Crossing of — (i) Express order of appropriate authority is necessary to allow civil servant to cross the efficiency bar. State of Mysore v. S.V.G. Iyangar, 1970(2) SCR 159: 1969(2) SCC 703: (1969) II SCWR 496: 1969 SLR 711:

R . 11]


169

(1970) 2 SCJ 715; Brahm Dev Seth v. Union of India, 1974 (1) SLR 680: 1973 SLJ 961; U.K. Narayanan v. State of M.P., 1975 SLJ 790: 1975 Lab IC 1173. (ii) Fundamental Rule 25 provides: “Where an efficiency bar is prescribed in a time-scale, the increment next above the bar shall not be given to a Government servant without the specific sanction of the authority empowered to withhold increments under Rule 24 of the relevant disciplinary rules applicable to the Government servant or of any other authority whom the President may by general or special order authorise in this behalf.” Stoppage of an official at the efficiency bar is not a penalty requiring the issue of notice. Rule 11, Explanation (ii), CCS (CCA) Rules expressly lays down that stoppage of a Government servant at the time scale of pay on the ground of his unfitness to cross the bar does not amount to penalty. A.Kanare v. Union of India, 1990 (2) ATJ 617 (Ahmedabad). 96. Stoppage at Efficiency Bar for Unfitness — Stoppage of a Government servant at the Efficiency Bar in the time-scale of pay on ground of his unfitness to cross the Bar is not a penalty under the Rules. The Civil servant is therefore not entitled any show-cause notice nor to an opportunity of showing cause against the proposal not to allow him to cross the Efficiency Bar. Dr Nazar Singh v. Punjab University, 1971 (2) SLR 60 (Punjab); Brahm Dev Seth v. Union of India, 1974 (1) SLR 680: 1973 SLJ 961; Ram Manoharlal Srivastva v. Chief Conservator of Forests, M.P. 1978 SLJ 191: 1978 (2) SLR 481. 97. Stoppage at Efficiency Bar for Adverse Remarks — The very words “efficiency bar” connote that unless a person is efficient he should not be allowed to progress further in of pay. Where the adverse remarks were communicated to the respondent from time to time, order not allowing him to cross the efficiency bar was not interfered with. Bansi Ram Sharma v. State of H.P., 1982 (1) SLJ 140: 1982 (1) SLR 378. On expunging of the adverse remarks the case to be reconsidered regarding eligibility to cross the efficiency bar from the date he was entitled to C.S. Suryanarayana v. Union of India, 1982 Lab IC 679: 1982 (1) SLR 465: 1982 (1) SLJ 198. 98. Stopping of the Crossing of Efficiency Bar for Unsatisfactory Work and Inefficiency — An order was served on the appellant intimating him that he neither showed interest in the work not applied himself sufficiently. Thereafter, by another order he was informed that his work was found to be unsatisfactory and it was proposed to withhold the grant of annual increment, which increment would have entitled him to cross the efficiency bar and he was called upon to make representation against the proposed order. The Government after considering the representation ordered stopping him to cross the efficiency bar. Held, the appellant has been given an opportunity to make a representation. He has made a representation and the Government has considered the representation as well as his records. The conclusion that an officer”s work is inefficient is based on his records as well as by the opinions formed by his superiors. The inefficiency is something which cannot be concretised. Bhawani Shankar

170


[R . 11

Sharma v. Union of India, (1972) 1 SCWR 794: AIR 1972 SC 2595: 1974(3) SCC 9: 1973(1) SLR 1095: 1973 LIC 7. 99. Discretion of Authority to Allow Crossing of Efficiency Bar from a Certain Date — Stoppage of a Government servant at the efficiency bar in the timescale of pay on the ground of his unfitness to cross the efficiency bar does not amount to any penalty. It is within the discretion of the competent authority to allow the crossing of efficiency bar from a certain date and not to allow arrears before the date from which the efficiency bar was allowed to be crossed. Brahm Dev Seth v. Union of India, 1973 SLJ 961: 1974 (1) SLR 680. 100. Discretion of Authority not to Allow to Cross Efficiency Bar: Whether Court can Interfere in the Discretion of Authority — One cannot cross the efficiency bar as a matter of right. It is the discretion of the authority concerned to allow a Government servant to cross the efficiency bar or not. This discretion, however, is not to be arbitrarily exercised. If the authority after his subjective satisfaction on the assessment of the overall service record of the officer in regard to his efficiency, integrity, intelligence etc., forms an opinion that the officer does not deserve to be put across the line drawn in the grade at the stage of the efficiency bar, then the matter cannot be agitated by the adversely affected officer against the authority”s decision. Pritam Singh Gill v. State of Punjab, 1979 (3) SLR 478. 101. Order Stopping to Cross Efficiency Bar, Time When to be ed — (i) In fairness to a public servant the order preventing him from crossing the efficiency bar should be ed either before the appointed date or shortly thereafter. Padam Singh Jhina v. Union of India, 1974 (1) SLR 594 (SC). (ii) Where there is no material on record to show as to why the petitioner was not allowed to cross the first efficiency bar with effect from the date of confirmation, he is entitled to an order in his favour. Jwala Prasad Singh v. State of Bihar, 1973 (1) SLR 546. 102. Order Allowing to Cross Efficiency Bar Whether Condones all Previous Adverse Entries — (i) Order allowing the petitioner to cross efficiency bar must be taken to condone all previous adverse entries. State of Punjab v. Dewan Chunilal, (1970) 1 SCWR 413: AIR 1970 SC 2086: 1970(3) SCR 694: 1970(1) SCC 479: 1970 SLR 375: (1971) 1 SCJ 238; Hira Nand v. State of H.P., 1981 (2) SLJ 218: 1981 (2) SLR 627. See contra Banshi Lal Nayati v. State of Rajasthan, 1999(3) SLR 187 Raj. (ii) Adverse report not construed as deterrent for crossing the efficiency bar is not obliterated and can be taken into consideration for negativing the claim for promotion. S.S.S.Venkatrao v. State of Orissa, 1974 (2) SLR 899: 1975 SLJ 266 (FB); Jaswant Singh Brar v. State of Punjab, 1975 (1) SLR 899; Ram Singh Kalson v. State of Haryana, 1978 (1) SLR 450; Ramesh Prasad Mahapatra v. State of Orissa, 1979 SLJ 366: 1980 (2) SLR 417 (FB).


R . 11]

RULE 11 MAJOR PENALTIES CLAUSES (v) & (vi) EXPLANATION (iv), (v) & (vi) Reduction to Lower Stage in Time-scale of pay Reduction to Lower Grade, Post or Service Postponement of Future Increments Reversion Replacement of Services of Borrowed Servants SYNOPSIS Reduction to Lower Stage in Time-scale of Pay 1.

Reduction in rank as understood for purposes of Art. 311 (2) ....................................... 173

2.

Disconfirmation, whether reduction in rank .................................................................. 173

3.

Non-promotion, no reduction in rank ............................................................................ 173

4.

Reversion, no reduction in rank .................................................................................... 173

5.

Transfer, no reduction in rank ....................................................................................... 174

6.

Transfer or removal from post of head of department ................................................... 174

7.

Reduction in rank with stigma must follow procedure of Art. 311(2) ........................... 174

8.

Reduction in pay-scale .................................................................................................. 175

9.

Authority under Payment of Wages Act, 1936............................................................... 175

Reduction to Lower Grade, Post or Service 10. Reduction to a lower rank than initial recruitment ........................................................ 175 11. Lower scale post offered on medical unfitness .............................................................. 175

Postponement of Future Increments 12. Postponement of future increments . .............................................................................. 176

Reversion 13. Effect of reversion .......................................................................................................... 176 14. High Court posted A.D.J. as S.S.J. without order of reversion, by State Government .. 176 15. Reversion as a result of adverse entries in service record ............................................. 176 16. Reversion for istrative reasons ............................................................................ 176 17. Reversion for Collateral or extraneous purpose ............................................................ 177 18. Reversion for failing to departmental examination ................................................ 177 19. Reversion for not qualifying test prescribed after promotion ........................................ 177

171

172


[R . 11

20. Reversion for misconduct .............................................................................................. 177 21. Reversion for unfitness .................................................................................................. 178 22. Reversion for unsatisfactory conduct or misconduct ..................................................... 178 23. Reversion for unsatisfactory work ................................................................................. 178 24. Reversion for unsuitability or inefficiency .................................................................... 178 25. Reversion on abolition of post ....................................................................................... 179 26. Reversion before fixed term .......................................................................................... 179 27. Reversion before tenure period ..................................................................................... 180 28. Reversion on request ..................................................................................................... 180 29. Reversion with loss of pay ............................................................................................ 180 30. Reversion, loss of pay to be determined from his substantive post ............................... 180 31. Reversion with retrospective effect ............................................................................... 180 32. Reversion order – indication of reason therein .............................................................. 181 33. Reversion order whether by way of punishment . .......................................................... 181 34. Reversion when by way of punishment ......................................................................... 181 35. Reversion – application of Art. 311 .............................................................................. 182 36. Natural justice ............................................................................................................... 182 37. Reversion: likely impact on promotion ......................................................................... 182 38. Reversion order: Test for attracting Art. 311(2) ............................................................ 183 39. Reversion junior allowed to continue ............................................................................ 183 40. First come last go .......................................................................................................... 184 41. Reversion with stigma ................................................................................................... 184 42. Reversion without stigma, motive of order ................................................................... 185 43. Reversion order, form of order not conclusive of its nature .......................................... 185 44. Reinstated and reverted ................................................................................................. 185 45. Reversion on acceptance of representation of respondent ............................................. 186 46. Reversion: Railways ...................................................................................................... 186 47. Reversion: Policy decision ............................................................................................ 186 48. Reversion: Ad hoc ex-serviceman ................................................................................. 186 49. Reversion due to qualification ........................................................................................ 186 50. Reversion after long officiation ...................................................................................... 186 51. Reversion under court orders ......................................................................................... 186 52. Reversion while on deputation ...................................................................................... 187 53. Reversion on being recalled .......................................................................................... 187 54. Reversion from deputation for unsuitability .................................................................. 187 55. Reversion from deputation by way of punishment ........................................................ 187 56. Replacement of services as work and conduct unsatisfactory ....................................... 187

R . 11]


173

57. Officiating and temporary servants entitled to protection in same manner as permanent servants ........................................................................................................ 187 58. Reversion of employee appointed on ad hoc basis ........................................................ 188 59. Challenge to proposed reversion .................................................................................... 188

1. Reduction in Rank as Understood for Purposes of Article 311(2) — Reduction in rank within the meaning of Article 311(2) means reduction from a higher to a lower rank or post and not merely losing places in the rank or cadre to which Government servant belongs, and consequently, his seniority within such cadre or rank. This would be so, even if as a result of the Government”s action he loses a higher salary or his chances of promotion to a higher post are reduced. For such action, the remedy would be under the rules governing the service and not under Article 311(2) as such action does not amount to reduction in rank as understood for the purposes of Article 311(2). State of Punjab v. Kishan Dass, (1971) 2 SCJ 291: AIR 1971 SC 766: (1971) 1 SCC 319: 1971(3) SCR 389: 1971 Lab IC 481; Baradkanta Misra v. High Court of Orissa, AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC 327: 1976(2) SLR 186: 1976 SLJ 529: 1976 Lab IC 1202: (1977) 1 SCJ 172. See also Ansarali Rakshak v. Union of India, (1984) 1 SLR 369 (Guj); M.C. Jain v. M.D. Cement Corp. of India Ltd., (1990) 7 SLR 744 (AP); Syed Wazihuddin Ahmed v. State of Assam, 1997 (1) SLR 472 (Gau). Word rank used in the phrase reduction in rank has reference to the stratification of the posts or grades or categories in the official hierarchy. It does not merely refer to seniority. All reversions from a higher post to a lower post do not necessarily amount to reduction in rank. A person working in a higher post, not substantively but purely on an officiating basis, may, for valid reasons, be reverted to his substantive post. Nyadar Singh v. Union of India, 1988(2) Supp SCR 547: AIR 1988 SC 1979: 1988(4) SCC 170: 1988(3) JT 448: 1989 Lab IC 14: 1989(1) SLJ 1: 1989(1) LLN 10: 1988(4) SLR 271: 1988(8) ATC 226. 2. Disconfirmation, Whether Reduction in Rank — If owing to some bona fide mistake the Government has taken a decision regarding the confirmation of an officer, it can certainly revise its decision at a subsequent stage when the mistake comes to its notice. Consequent reduction could not amount to reduction in rank. Sunder Lal v. State of Punjab, AIR 1970 Punjab 241: 1970 SLR 59. For other view see Municipal Committee, Rohtak v. Johri Mal Mitter, 1967 SLR 29. 3. Non-promotion, No Reduction in Rank — Non-promotion to a post after considering the case does not amount to reduction in rank of penalty. State of West Bengal v. Smt. Kalyani Choudhury, AIR 1970 Cal 225. 4. Reversion, No Reduction in Rank — (i) Reversion from officiating higher post to substantive post is not reduction in rank. Union of India v. R.S. Dhaba, (1969) 1 SCWR 922: 1969 Cur LJ 461: 1969 SLR 442; State of Assam v. Biraja Mohan Deb, 1969 II SCWR 583; Sri Krishan Agarwal v. State of M.P., AIR 1970 MP 162; State of Mysore v. M.K.Godgoli, AIR 1977 SC 1617: 1977(3) SCC 512: 1977 Crl LJ 1101: 1977 CAR 332: 1977 CrLR(SC) 260: 1977 Lab IC 847: (1977) 2 SCJ 299. See also G.

174


[R . 11

Venugopal v. Director of , Appellate Authority, 1993 (4) SLR 81 (CAT, Hyderabad). (ii) Reversion from temporary post does not per se amount to reduction in rank because temporary post held by him is not his substantive rank. Hartwell Prescott Singh v. U.P. Government, AIR 1957 SC 886: 1958 SCR 509: 1958 SCJ 148. A person was promoted as Assistant Engineer on ad hoc basis, as a local arrangement for more than three years. He was later suspended. Suspension was revoked after nine months, but the employee was reverted, on the ground of pendency of vigilance case. Reversion was held to be punitive in nature and, as such illegal. Narayan Kutty v. G.M., Mahanagar Telephone Nigam Ltd., (1988) 4 SLR 616 (CAT New Bombay). 5. Transfer, No Reduction in Rank — Government has the power to transfer a Government servant from one post to another and to re-transfer him to the post on which he holds a lien. This reversion is not reduction in rank. Article 311 does not apply. Fateh Singh Chugha v. State of Punjab, AIR 1970 P&H 315. 6. Transfer or Removal from Post of Head of Department — (i) Appellant was confirmed as Inspector-General of Registration, I.G.R. Head of Department. While he was holding this post, the post of I.G.R. was included in the cadre of Indian istrative Service. Appellant was posted as Accommodation Controller, a post which is not of Head of Department. Appellant was to continue to draw pay in his old scale. No reduction in rank. K. Gopaul v. Union of India, (1968) 1 SCWR 49: AIR 1967 SC 1864: 1967(3) SCR 627: 1967 SLR 507. (ii) Lecturer appointed as head of the department and subsequently removed from that post without affording him opportunity to be heard. Principles of natural justice not followed. D. Ramanadha Sastry v. Government Council, C.S.R. Sarma College, 1969 Lab IC 1562 (AP). (iii) Transfer from the post of Inspector-General of Police, Himachal Pradesh to the post of D.I.G., C.R.P. Both posts carried the same scale of pay. Power and status to the post of I.G. being greater, the transfer is reduction in rank. Madan Gopal Singh v. Union of India, 1969 SLR 576. 7. Reduction in Rank with Stigma Must Follow Procedure of Art. 311(2) — It has been ruled again and again by the Supreme Court that reduction in rank accompanied by a stigma must follow the procedure of Art.311(2) of the Constitution. Debesh Chandra Das v. Union of India, (1969) II SCWR 1: AIR 1970 SC 77: 1970(1) SCR 220: 1969(2) SCC 158: (1977) 1 SCJ 16. Reduction in rank is one of the major punishment mentioned in Art.311. The words “dismiss, remove or reduce in rank” have a stigma, namely the meaning, which they bear as three major punishments in Service Rules. If one is reverted by way of punishment for misconduct, Art. 311(2) is attracted. Barada Kanta Misra v. High Court of Orissa, AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC 327: 1976 SLJ 529: 1976 Lab IC 1202: (1977) 1 SCJ 172. Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been

R . 11]


175

informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent upto the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999 (83) FLR 534: 2000 (96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000 (1) LLN 39 8. Reduction in Pay-scale — Government has authority to change the designation but in this guise not to revise the pay-scale to the detriment of incumbent of that post who was a confirmed hard working on that post. That would amount to reduction in rank which could not be done without complying with the requirements of Art.311(2). P.C.Saxena v. State Government of U.P., 1970 SLR 112. See also P.V. Srinivasa Sastry v. Comptroller and Auditor General , (1979) 3 SLR 509 (Kar); Nyadar Singh v. Union of India; M.J. Ninama v. The Post Master General, Gujarat, (1988) 4 SLR 271. If service of a public servant is extended on the same no reduction in pay-scale can be made by subsequent letter. C.L.Jangra v. Director of Public Instruction, 1982 (2) SLR 272. 9. Authority under Payment of Wages Act, 1936 — Disciplinary orders of punishment was ed reducing the pay to the minimum stage of time scale. Held that authority constituted under section 15 of the Payment of Wages Act, 1936 has no jurisdiction to interfere with the orders ed under the disciplinary proceedings. State of Punjab v. Baldev Singh, 1998(9) SCC 325: 1998(8) JT 423(1): 1999(1) LLJ 254: 1999(1) LLN 18: 1999(81) FLR 303. Reduction to Lower Grade, Post or Service 10. Reduction to a Lower Rank than Initial Recruitment — Punishment imposable in a disciplinary action could not be of reversion to a rank lower than the initial recruitment itself. Babaji Charan Rout v. State of Orissa, (1982) 1 SLJ 496: (1981) 3 SLR 189: 1982 Lab IC 603. But Andhra Pradesh view is that even where an employee is directly recruited to a particular post, a disciplinary authority is competent to impose the penalty of reduction to a lower post. Mahendra Kumar v. Union of India, (1983) 3 SLR 319 (AP). 11. Lower Scale Post Offered on Medical Un-fitness — Normally an employee who is medically unfit for service would be invalidated or discharged. Appellant who was an Engine Driver having been found medically unfit for the post was offered the post of Pump Engine Driver for which he was found medically fit. Scale of pay for this post is lower than the scale of pay of Engine Driver. In these

176


[R . 11

circumstances it can hardly be said that he was either punished or reduced in rank. Mohammad Sagiruddin v. Divisional Mechanical Engineer, N.F. Rly, 1973 SLJ 553: 1973 (1) SLR 1098: AIR 1973 SC 1306: 1973(4) SCC 133: 1973 Lab IC 877. Postponement of Future Increments 12. Postponement of Future Increments — Where the petitioner was ordered to suffer three increments having the effect of the postponement of his future increments, held, if the effect of the order is the reduction of petitioner to a lower stage, in the time- scale, it means the imposition of a major penalty and the imposition of such a penalty contrary to rules framed under the proviso to Article 309 of Constitution is liable to be quashed. C. Veera Chowdaiah v. State of Mysore, 1973 (1) SLR 241: 1973 SLJ 700. Reversion 13. Effect of reversion — The relationship of master and servant between the employee and the employer continues in case of reversion. Public Services Tribunal Bar Association, State of U.P., 2003 (4) SCC 104. 14. High Court Posted ADJ as SSJ without Order of Reversion by State Govt. — High Court requested the State Government to revert the petitioner from the post of Additional District and Sessions Judge. Although no order of reversion was ed by the State Government, High Court directed the petitioner to hand over charge as Additional District and Sessions Judge and posted him as Senior Subordinate Judge. Held, the order was in excess of powers and therefore invalid. A.N.Bhoil v. Union of India, 1973 (2) SLR 726; Barada Kanta Misra v. High Court of Orissa, AIR 1976 SC 1899: 1976 Supp SCR 1046: 411: 1978 HLR 473: 1976 SLJ 529: 1976 Lab IC 1202: (1977) 1 SCJ 172. 15. Reversion as a Result of Adverse Entries in Service Record — Order of reversion as a result of adverse entries in service record attracts the provisions of Art.311. Satish Chandra Mital v. State of U.P., 1975 (1) SLR 65; Santosh Kumar Mahapatra v. State of Orissa, 1975 Lab IC 1464; Union of India v. S.B.Chatterjee, 1980 (2) SLR 365; Dulal Kumar Mazumdar v. State of West Bengal, 1981 (2) SLR 780. Rattan Singh v. Union of India, (1990) 7 SLR 548. Petitioner”s name was removed from the promotion list (Punjab Police Rules) without show cause notice and was reverted from officiating post. Adverse remark of drunkeness was made around him during the same period. Reversion was held penal and illegal without show cause notice. Deep Chand v. State of Haryana, (1983) 1 SLR 158 (P&H). 16. Reversion for istrative Reasons — The reversion of a probationer or a person appointed on a post temporarily may be either in the ordinary course for istrative reasons in accordance with the rules of service or it may be as a measure of punishment. Where it is ordered as a measure of punishment, Art 311 will be attracted and not otherwise. Shrikrishna Agarwal v. State of M.P., AIR 1970 MP 162. G. Venugopal v. Director of Appellate Authority, 1993 (4) SLR 81 (CAT Hyderabad); M.K. Jain v. Rajasthan Financial Corporation, (1986) 1 SLR 95 (Raj).

R . 11]


177

Petitioner was promoted against a temporary post on a temporary basis. Before he is reverted on istrative ground or in the exigencies of service, he cannot claim any hearing. Diwan Chand v. State of Haryana, 1982 (1) SLR 338. A candidate who holds a post after succeeding in qualifying test, has a vested right to hold such post. Reversion of such candidate merely because of some istrative problem held to be not proper. Union of India v. Dev Raj, 2001 (6) SLR 699 Del (DB). 17. Reversion for Collateral or Extraneous Purpose — Power of reversion used for collateral or legally extraneous purpose is misuse of power. State of Mysore v. P.R. Kulkarni, 1972 SLR 795: AIR 1972 SC 2170: 1973(3) SCC 597: 1972 Lab IC 1280. 18. Reversion for Failing to Departmental Examination — The order reverting an employee on the ground that he has failed to the departmental examination within the period prescribed under the rules does not amount to reduction in rank and Art. 311 of Constitution will not apply. Suraj Bahadur Saxena v. Central Board of Excise and Customs, 1973 (2) SLR 200; Union of India v. Gajendra Singh, (1972) 1 SCWR 601: AIR 1972 SC 1329: 1972(3) SCR 660: 1973(3) SCC 797: (1973) 1 SCJ 265; Darshan Singh v. State of Punjab, 1980 (3) SLR 345; Satyadeo Singh v. State of Bihar, 1981 (3) SLR 671. Where no examinations were held, there is no question of reversion on ground of failure to examination. State of Maharashtra v. Chandrakant Anant Kulkarni, AIR 1981 SC 1990: 1982(1) SCR 665: 1981(4) SCC 130: 1981 SCC (Lab) 562: 1981 (3) SLR 326 (SC): 1981 (2) SLJ 280: 1982 (1) SLR 697. 19. Reversion for not Qualifying Test Prescribed After Promotion — It was not open to the Government to prescribe any qualifications for the existing personnel after they had been promoted without any condition as to the acquisition of the prescribed qualification by mere executive instructions. The petitioner, it was held could not be reverted. Harjit Singh v. Inspector General of Police, Haryana 1969 Cur LJ 966: 1969 SLR 845; Chief Secretary to Govt. of Mysore v. S.C.Chandraiah, 1967 SLR 155 (SC); Mrs. J.K. Pritam Singh v. State of Punjab, 1967 SLR 251; See also State of Karnataka v. B.V. Thimmappa, 1993 (5) SLR 266 and Krishna v. Superintendent of Police, 2002 (3) SLR 588 Kant (DB). 20. Reversion for Misconduct — If watchman in Marine Products Export Promotion Authority was appointed as messenger on comionate ground on probation for two years, it was not a promotion post and there was no change of emoluments. He was reverted on the ground of misconduct during probation period. It was held that such reversion could not be ordered without proper inquiry. O. P. Kumaran v. Marine Products Export Development Authority, (1983) 2 SLR 57: (1983) 1 SLJ 480 (Ker). However in another case where the candidate was working on a probation basis in a temporary cadre, it was held that the candidate does not get permanent status and she could always be reverted especially when the falsification of records by the candidate is apparent on record. Sheela Rani v. State of Haryana, 2002 (2) SLR 326 P&H.

178


[R . 11

21. Reversion for Unfitness — Reversion from temporary post in higher service of grade to substantive post in lower grade of service on of unfitness to hold high officiating post is not reduction in rank. Harbans Lal Nihal Chand v. Supdt. of Police, AIR 1969 Punj 131; Divisional Officer v. S. Raghavendrachari, AIR 1966 SC 1529: 1966(3) SCR 106: 1967(1) LLJ 401: (1966) 2 SCJ 535. Confirmed employee can be discharged only on the grounds of continued inefficiency or dishonesty, Wasim Beg v. State of Uttar Pradesh, AIR 1998 SC 1291: 1998(3) SCC 321: 1988(2) JT 354: 1998(2) SLR 174: (1998) 2 SCJ 54. 22. Reversion for Unsatisfactory Conduct or Misconduct — The Order of reversion on the ground of unsatisfactory conduct casts a slur on the employee. It is not a simple order of reversion but casts a stigma. Union of India v. Hemanta Kumar Das Choudhury, 1971 Lab IC 101. However see, N. Subramaniam v. D.P.O., S.E.Rly., AIR 1970 Orissa 12, wherein it was held that mere indication of reason does not amount to punishment. See also, Kalam Das v. Chief Electoral Officer, 1977 (1) SLR 726. A Division Bench of Rajasthan High Court in Union of India v. S.B. Chatterjee, 1980 (2) SLR 365 after careful consideration and a comprehensive survey of almost all the relevant judgments of Supreme Court on the point came to the conclusion that if the foundation of the order of reversion is the misconduct or negligence, then Art 311(2) is attracted, but if the misconduct or negligence is mere motive and not the foundation, then Art 311(2) will have no application. See also Ram Kishore Tiwari v. High Court of Judicature, M.P., 1981 (2) SLR 47. 23. Reversion for Unsatisfactory Work — When a person officiating in a post is reverted for unsatisfactory work, it cannot be said that his reversion would amount to reduction in rank. Divisional Personnel Officer v. S. Raghvendrachari, AIR 1966 SC 1529: (1966) 2 SCJ 535; Anirudh Singh v. Sub-Divisional Magistrate, Chandausi, 1973 (2) SLR 269; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 Lab IC 1748: 1976 SLJ 271: 1975 (2) SLR 740; State of Mysore v. M.K. Gadgoli, AIR 1977 SC 1617: 1977(1) SCC 469: 1977 Lab IC 847: (1977) 2 SCJ 299: State of Maharashtra v. V.G. Koppar, AIR 1981 Bom 131. 24. Reversion for Unsuitability or Inefficiency — (i) It is well settled that a Govt. servant who is officiating in a post has no right to hold it for all times and Govt. servant who is given an officiating post holds it on the implied term that he will have to be reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability is an action in accordance with the of the officiating post is held and not a reduction in rank by way of punishment to which Art. 311 of the Constitution could be attracted. Union of India v. R.S. Dhaba, (1969) 1 SCWR 922: 1969 Cur LJ 461; State of Assam v. Biraja Mohan Deb, (1969) II SCWR 583; M.C. Shrinivasa v. Collector of Central Excise, AIR 1970 Mysore 238; State of Haryana v. Mulkh Raj, AIR 1970 P&H 415; Fateh Singh Chuga v. State of Punjab, AIR 1970 P&H 315; Dr. Kanwharchand v. State of M.P., 1976 SLJ 535; State of Mysore v. M.K. Gadgoli, AIR 1977 SC 1617: 1977(1) SCC 469: 1977 Lab IC 847: (1977) 2 SCJ 299. (ii) When a civil servant officiating in a higher service, grade or post is considered unsuitable for such a service, grade or post, his reversion is neither

R . 11]


179

punishment nor reduction in rank. State of Bombay v. P.A. Abraham, AIR 1962 SC 794: 1962 Supp(2) SCR 92: (1962) 2 SCJ 1683; Jagdish Mitter v. Union of India, AIR 1964 SC 449: 1964(1) LLJ 418; Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1854: (1964) 5 SCR 190: 1964(1) LLJ 752; S.K. Das Gupta v. O.N.G. Commission, AIR 1970 Gujarat 149; Secretary to Govt. of West Bengal v. Ram Chandra Chaudhury, AIR 1973 Cal. 222; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740: 1976 SLJ 271; H. Krishnamurthy v. State of Karnataka, 1981 (1) SLJ 590: 1982 Lab IC 397. (iii) Unsuitability for the job may arise out of a number of circumstances which may or may not include his efficiency, his conduct or his desirability for the post concerned. The word “unsuitable” is a very wide word which takes in other cases than cases of inefficiency, undesirability, unsatisfactory conduct etc. That being so, it cannot be held that if a Government servant is found unsuitable for a job, any stigma is cast upon him. Syed Abbas Hussain Nagri v. State of A. P., AIR 1971 AP 1 (FB) : 1971 Lab IC 30. (iv) Reversion for inefficiency. Order casts stigma. Lakshman Swaroop Sharma v. State of U.P., 1975 (1) SLR 200: 1975 Lab IC 34. 25. Reversion on Abolition of Post — Petitioner was appointed to a temporary post temporarily. Post was made permanent but subsequently it was abolished. Petitioner was reverted to his substantive post. Held, he was not removed from service by way of penalty and Art. 311 does not apply. Government is fully entitled either to create or abolish a post. Gian Chand Jain v. State of Haryana, 1968 SLR 752. See also Amanulla v. Union of India, (1989) 7 SLR 658 (CAT Cal.). See also Mahesh Kumar Mudgil v. State of Uttar Pradesh (1998) 1 SCJ 266. Appellant was reverted to his parent department to a non-gazetted post. He did not the post on the plea that although he had become quite senior in his parent department, he was reverted to a non-gazetted post. If the appellant had cared to there, it would have been open to him to make a representation for his appointment on a proper post with due regard to his seniority and service record. If he did not do so, and stayed away from his parent department, it is not open to him to argue that he was not given a proper post there. Kedar Nath Bahl v. State of Punjab, AIR 1979 SC 220: 1979(1) SCR 1089: 1978(4) SCC 336: 1979(1) SLR 288: 1979 SLJ 105: 1978 Lab IC 1765. The legal position is settled beyond dispute now that even in Government establishments when retrenchment has to be made, the practice of retrenching the junior officers first has to be done. Biswamitra Agasti v. State of Orissa, 1982 Lab IC 473. 26. Reversion Before Fixed Term — Where temporary appointment to officiate in a post for a fixed term was made, it was held that reversion before the date fixed was premature termination and illegal. Prasanta Mahapatra v. State of Orissa, AIR 1969 Orissa 61; see other view in Fateh Singh Chuga v. State of Punjab, AIR 1970 P & H 315; Bhagwan Dass v. State of Punjab, 1967 SLR 240 (Punjab). State is not competent to cancel the selection with the provisions of Art. 311(2) of the Constitution. P. Viswanathan v. Post Master General, A.P., 1983 (1) SLJ 58.

180


[R . 11

Petitioner was appointed to a temporary post temporarily. Post was made permanent but subsequently it was abolished. Petitioner was reverted to his substantive post. Held, he was not removed from service by way of penalty and Art. 311 does not apply. Government is fully entitled either to create or abolish a post. Gian Chand Jain v. State of Haryana, 1968 SLR 752. See also Amanulla v. Union of India, (1989) 7 SLR 658 (CAT Cal.). See also Mahesh Kumar Mudgil v. State of Uttar Pradesh (1998) 1 SCJ 266. 27. Reversion Before Tenure Period — I.A.S. officer of State cadre when appointed at the Centre holds tenure post and is not on deputation. Reversion to State before tenure period is reduction in rank as rank at the Centre is higher. Debesh Chandra Das v. Union of India, (1969) II SCWR 1: AIR 1970 SC 77: 1970(1) SCR 220: 1969(2) SCC 158: 1969 SLR 485: (1970) 1 SCJ 16. 28. Reversion on Request — Civil servant reverted to lower post on his own request. He could not retain lien on the post from which reverted. Amrit Rao Kamerikar v. State of M.P., 1970 SLR 577. 29. Reversion with Loss of Pay — (i) Reversion in all officiating appointments would necessarily lead to loss of benefit of higher pay, but then itself cannot indicate that the reversion was by way of punishment. Union of India v. R.S. Dhaba, (1969) 1 SCWR 922: 1969 SLR 442; N. Subramaniam v. Divisional Personal Officer, S.E. Rly, AIR 1970 Orissa 12; Pallikoiloth Shyama Prasad v. Chief Commissioner, 1970 SLR 161: 73 Cal WN 939; Chander Singh v. State of Rajasthan, 1973 (1) SLR 289. (ii) Appellant, a member of I.C.S. was allotted to Assam. He was appointed Secretary to the Govt. of India at Rs. 4,000/-. Reverted to Assam where highest pay is Rs.3,500/-. He held tenure post at Delhi. His reversion to Assam means a reduction in rank with a stigma upon his work without following procedure laid down in Art. 311(2). Dabesh Chandra Das v. Union of India, (1969) II SCWR 1: AIR 1970 SC 77: 1970(1) SCR 220: 1969(2) SCC 158: 1969 SLR 485: (1970) 1 SCJ 16. 30. Reversion, Loss of Pay to be Determined from his Substantive Post — When a person is reverted to the substantive rank, the question of penal consequences in the matter of forfeiture of pay or loss of seniority must be considered with reference to his substantive and not to his officiating rank for every reversion must necessarily mean that the pay will be reduced to the pay of substantive rank. Shri Krishan Agarwal v. State of M.P., AIR 1970 MP 162; Fateh Singh Chuga v. State of Punjab, AIR 1970 P&H 315. 31. Reversion with Retrospective Effect — (i) Appellant ed the Tripura Civil Service and was posted as a probationer D.P.O. Tripura Civil Service was split into two cadres. Senior officers were absorbed as S.D.O”s and junior officers as S.T.O.I”s. Appellant was appointed as S.T.O. and some time later was appointed as S.D.O. He was then reverted as S.T.O. He was suspended and then dismissed. He challenged suspension and dismissal. The Court set aside the impugned order. He was reinstated as S.O.S. and by the same order reverted to his substantive post of S.T.O. with retrospective effect. The reason for reversion was that since another officer was

R . 11]


181

occupying the post of S.O.S., the post having been filled by another officer approved by U.P.S.C. Order of reversion upheld. Naresh Chandra Saha v. Union Territory, Tripura, AIR 1970 SC 364: 1970(2) SCR 639: 1969(3) SCC 22: 1969 SLR 839: (1971) 2 SCJ 520. (ii) Petitioners were reverted to the posts of senior clerks retrospectively with effect from the date on which they were promoted as assistants. Held, impugned order would not have amounted to a penalty, if thereby petitioners had been reduced in rank prospectively, it entailed penal consequences because of its retrospective operation. Sarwan Singh v. Union of India, AIR 1960 HP 24. (iii) No retrospective reversion can be ordered. R. Jeevaratnam v. State of Madras, 1967 SLR 657; Ram Singh v. State of Punjab, 1982 (1) SLR 892. K.V. Donnikrishan Nair v. Director General, C.S.I.R. (1988) 7 SLR 684 (CAT) (Earnakulam); J.S. Brah v. Central Warehousing Corp., 1997 (1) SLR 549 (MP). 32. Reversion Order – Indication of Reason Therein — The mere indication of the reason in the order of reversion cannot amount to punishment. N. Subramaniam v. D.P.O., S.E. Rly., AIR 1970 Orissa 12. If the reasons are disclosed, then it is said that the order of the Government was ed by way of punishment. If it does not disclose the reasons, then the argument is that it is arbitrary and violative of Art. 16. You have to look to the order on the face of it to find out whether it casts any stigma on the Government servant. State of Maharashtra v. V.R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621. 33. Reversion Order Whether by Way of Punishment — (i) An order ed maliciously or on collateral considerations on which involves penal consequences, or denied to the civil servant, the guarantee of the Constitution or of the rules governing his employment, is always open to challenge by appropriate proceedings as having been ed by way of punishment. Jagdish Prasad Shastri v. State of U.P., (1970) II SCWR 723: 1970 SLR 938: AIR 1971 SC 1224: 1971(2) SCR 583: 1970(3) SCC 631: (1971) 2 SCJ 409. See also G. Venugopal v. Director of Appellate Authority, 1993 (4) SLR 81 (CAT Hyderabad). (ii) Whether a particular order of reversion amounts to reduction in rank by way of punishment cannot be decided merely on the basis of the of the order but regard must be had to be the attendant circumstances also. Appar Apar Singh v. State of Punjab, (1971) I SCWR 226: 1971 SLR 71: (1971) 2 SCR 890: 1970(3) SCC 338: (1971) 2 SCJ 566: 1970(2) LLJ 686. (iii) In Regional Manager v. Pawan Kumar, AIR 1976 SC 1766: 1976(3) SCR 540: 1976(3) SCC 334: 1976 Lab IC 1146: 1976 SLJ 387: 1976 (2) SLR 44 Supreme Court held that sudden reversion for the reason that respondent was “not fit yet” in the reversion order could be held to amount to an unjustified stigma which could not be said to be devoid of an element of punishment. 34. Reversion When by Way of Punishment — If the reversion involves penal consequences or in the order of reversion there is anything which would effect his future promotion or if the civil servant has right to a particular rank, then the very

182


[R . 11

reduction from rank will operate as a penalty. P.L. Dhingra v. Union of India, AIR 1958 SC 36: 1959 SCR 828: 1958 SCJ 217: 1958(1) LLJ 544; Madhavo Laxman v. State of Mysore (1962) 1 SCJ 134: AIR 1962 SC 8: 1962(1) SCR 886; Ram Chandra Chaudhri v. Secretary to Govt. of West Bengal, AIR 1964 Cal 265; Amrit Rao Kamerikar v. State of M.P., 1970 SLR 577; K.H. Phadnis v. State of Maharashtra, AIR 1971 SC 998: 1971 Supp SCR 118: 1971(1) SCR 790: 1971(2) SLR 345: (1973) 1 SCJ 420. No reasons whatsoever were assigned in the impugned orders of reversion. The aggrieved employees officiating in higher posts were not even stated to be unsuitable in higher posts. It cannot be contended that all the employees reverted from officiating higher posts were suddenly found unsuitable without reference to their conduct during the strike period. The irresistible inference is that the petitioners were reverted from officiating higher posts to their substantive lower posts by way of punishment as they absented from duties during the period of strike. S. N. Nagarajulu v. Railway Board, 1982 (2) SLJ 13: 1981 (3) SLR 305. 35. Reversion – Application of Art. 311 — The real test in cases of reversion is to ascertain whether the officer concerned has a right to the post from which he is reverted. If he has a right to the post then reversion is punishment and cannot be ordered except in compliance with the provisions of Art. 311. If on the other hand he has no right to the post, he can be reverted without attracting the provisions of Art. 311, but the intention must not be to punish him or cast a stigma on the officer. State of U.P. v. Sughar Singh, (1974) II SCWR 80: (1975) 1 SCJ 12: 1971 (1) SLR 435: 1974 SLJ 474; G.S. Gill v. State of Punjab, 1975 SLJ 167: 1974 (2) SLR 543; V.K. Singh (Mrs) v. State of M.P., 1975 SLJ 60. See also Chandi Das Banerjee v. Union of India, (1990) 13 ATC 551 (Cal): (1990) 2 ATJ 278. The order upgrading the posts does not show that the upgrading was of a temporary character nor does the order promoting the respondents to the said posts show that the promotion was on an officiating basis. It was not shown that any rule prescribed that the promotion of an employee to the said posts shall initially be on an officiating basis. The promotion, therefore, was on permanent basis and if that be so the reversion of respondents must be held violative of Article 311 clause (2) of the Constitution. Union of India v. Jagdish Prasad, AIR 1982 SC 773: 1982(1) SCC 421: 1982 Lab IC 441: 1982 (2) SLJ 7. 36. Natural Justice: Before reverting an employee as a result of representations received from other employees rules of natural justice must be observed. Jatinder Pal v. State of Punjab, (1983) 1 SLR 551 (P&H). See also Pooran Chand v. Municipal Committee, (1989) 1 SLR 210 (P&H), S. Sthiah v. Secretary, Min. of Railways, (1991) 2 SLR 205 (CAT Madras); Ishwarlal G. Vyas v. Union of India, (1990) 3 SLR 177 (CAT Ahmedabad). Reversion without giving opportunity of hearing is bad in law. B.N. Malhotra v. State of Haryana, 2003 (1) SLR 366 P&H; Kasturi Lal Kashyap v. State of Punjab, 2002 (6) SLR 131 P&H; Dharampal v. State of Haryana, 2001 (6) SLR 315 P&H (DB). 37. Reversion: Likely Impact on Promotion — Where reversion of an Inspector of Police to the post of sub-Inspector alongwith removal of his name from list F is ordered, opportunity of hearing should be given before the order is ed as it

R . 11]


183

disentitled the employee from being considered for promotion. However, mere reversion in itself does not attract Article 311(2) of the Constitution. Richhapal Singh v. I.G.P., Haryana, (1983) 1 SLR 399 (P&H). Bimalesh Kumar Chakraborty v. Union of India, (1988) 7 SLR 193 (CAT Cal.); Prakash Lal v. Superintendent of Police, (1989) 7 SLR 571 (HP AT); Varinder Kumar v. State of Punjab, (1988) 1 SLR 435 (P&H). 38. Reversion Order : Test for Attracting Art. 311(2) — The test for attracting Article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service, or whether it is the very foundation of termination of service of the temporary employee. Champaklal Chimanlal Shah v. Union of India, (1964) 5 SCR 190: AIR 1964 SC 1854: 1964(5) SCR 190. The undesirable conduct on the part of respondent might have been the motive for reverting him to his old post, such reversion cannot be termed as penalty or punishment. Oil and Natural Gas Commission v. Dr. Md. S.Iskander Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2) SLR 792; Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88. The Supreme Court has taken the view that if the very foundation of the order of reversion is the misconduct or negligence then Art.311(2) is attracted, but if the misconduct or negligence is mere motive and not the foundation, then Art.311(2) will have no application. Union of India v. S.B. Chatterjee, 1980 (2) SLR 365; Ram Kishore Tiwari v. High Court of Judicature, M.P., 1981 (2) SLR 47. The petitioner was accused of gross misconduct which calls for punishment after disciplinary action. The mere fact that disciplinary proceedings were not held are not sufficient to hold that the impugned order of reversion is not punitive. Smt. Maria T.S. da Moraise Almeida v. Union of India, 1982 (1) SLJ 136. 39. Reversion : Junior Allowed to Continue — The respondent was reverted when at least 200 other officers who were junior to him in substantive cadre. That would make the order liable to be struck down as violative of Art.16 of the Constitution. Reference may be made to State of Mysore v. P.R. Kulkarni, 1970 SLR 795: AIR 1972 SC 2170: 1973(3) SCC 597: 1972 Lab IC 1280 wherein order of reversion was struck down by Supreme Court on the ground of “unjustifiable discrimination”. Order set aside having been ed by way of punishment. State of U.P. v. Sughar Singh, 1974 (1) SLR 435: 1974 SLJ 474: AIR 1974 SC 423: 1974(2) SCR 335: 1974(1) SCC 218: (1975) 1 SCJ 12; Lt. Governor of Delhi v. Dalip Singh, 1976 (2) SLR 156. The petitioner was promoted as Naib Tehsildar. He challenged the reversion on the ground that six of the respondents were junior to him who were working as Naib Tehsildar. The reply of the State was that the said six respondents had qualified the prescribed test for becoming Naib Tehsildar candidate whereas the petitioner failed to the test. Held, the petitioner was rightly reverted. Darshan Singh v. State of Punjab, 1980 (3) SLR 345. Also, see Notes 34 & 35.

184


[R . 11

When similarly rather worst situated i.e. illiterate candidates were continuing, reversion of the petitioner was held to be not proper. Laxmi Chand v. Haryana Vidyut Prashan Nigam Ltd., 2002 (2) SLR 637 SC. 40. First Come Last Go — The reversion should be in the order of their seniority on the principle “first come last go”. Sudershan Sood v. State of Punjab, 1969 Cur LJ 846: 1969 SLR 715; Hari Kishan Lal Chopra v. State of Punjab, 1974 SLJ 1; Biswamitra Agasti v. State of Orissa, 1982 Lab IC 473. A Division Bench of Delhi High Court held, “It is well settled that if there are a number of posts in a cadre and some of the posts are abolished, it is not the incumbent of the post which is abolished who is liable to be reverted, but the axe would ordinarily fall on the junior most in the cadre. This is so because the rule of “Last come must first go” does not strictly apply to the service under the State and even though ordinarily the State may follow such a wholesome to practice may, for good reasons, decide to retain the junior most in preference to the comparative senior one if there are valid istrative grounds, such as competence, record of service, etc. which may justify such a departure. Kuldeep Chand Sharma v. Delhi istration, 1978 SLJ 461: 1978 (2) SLR 379. 41. Reversion with Stigma — (i) Respondent who was a Head Assistant was promoted as A.E.T.O. He was suspended and charge sheet was served on him. Respondent filed reply. He was given another show cause notice as to why he should not be reverted to his previous post. Respondent made reply to the show cause. He was reverted to his substantive post. It is not a case of preliminary enquiry. It is a case in which a formal enquiry was ordered and after the respondent had given reply to the charges, the enquiry was then dropped, and he was reverted. It is evident that he was reverted. In consequence of charges of misconduct, which charges, he had not the opportunity to dispose in the enquiry that should have been held into the same and the existence of the same leaves a stigma on his service career, of which the effect is penal. The reversion is against the provisions of Art.311(2). State of Punjab v. Vidya Prakash, 1969 SLR 732. (ii) Where the order clearly states that the appellant was found totally inefficient for this post and for that reason he was being reverted, the order casts a stigma of inefficiency on the appellant. The order is illegal. Lakshman Swaroop Sharma v. State of U.P., 1975 (1) SLR 200: 1975 Lab IC 34. (iii) In State of U.P. v. Virendra Nath Srivastava, 1969 ALJ 1039: 1970 SLR 48, it was held that sudden reversion of the respondents to their lower substantive posts while allowing their juniors to officiate in higher posts, casts an aspersion on their professional ability and previous record of service and without giving opportunity to show cause was in violation of Article 311. Supreme Court in Regional Manager v. Pawan Kumar Dubey, AIR 1976 SC 1766: 1976(3) SCR 540: 1976(3) SCC 334: 1976 SLJ 387: 1976 (2) SLR 44, held that sudden reversion for the reason that the respondents were “not fit yet” in the reversion order, could be held to amount to an unjustified stigma which could not be said to be “devoid of an element of punishment”.

R . 11]


185

The reversion order was quashed and the authorities were directed to consider case of respondent on merits along with others who may be eligible to officiate in the post. 42. Reversion Without Stigma, Motive of Order — (i) The order of reversion contained no adverse remarks against the appellant nor can it be said that any stigma attaches to him because of the order. If the authorities came to the conclusion that pending the holding of an open enquiry into the charges of corruption against him, he should not be allowed to officiate in a higher post, it cannot be inferred therefrom that the reversion was by way of punishment. The existence of such a motive cannot vitiate the order of reversion. R.S. Sial v. State of U.P., (1974) 2 SCJ 333: 1974 (1) SLR 827: (1974) 1 SCWR 749: AIR 1974 SC 1317: 1974(3) SCR 754: 1975(3) SCC 111: 1974 SLJ 396. (ii) Where the order of reversion in case of a person who had no right to the post, does not show ex facie that he was being reverted as a measure of punishment or does not cast any stigma on him, the Court will not normally go behind that order to see if there were any motivating factors behind that order. S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740: 1976 SLJ 271: 1975 Lab IC 1748. (iii) The petitioner, a Sub Divisional Engineer was promoted as an Executive Engineer and put on probation. He was reverted by the impugned order which is innocuous. In the written statement the State took a definite stand that during the period petitioner was officiating as Executive Engineer his integrity was found doubtful and the order of reversion had been ed after considering the confidential reports earned by the petitioner during the first two years of his probation period. Held, when the motive of the order was punishment, it could not be ed without following the provisions of Art. 311(2) and cannot be upheld. O.P.Behl v. State of Haryana, 1981 (1) SLR 96. 43. Reversion Order, Form of Order not Conclusive of its Nature — It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or istrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. If the order is made by way of punishment, provisions of Art. 311(2) have to be complied with. State of Bihar v. Shiv Bhikshuk Mishra, (1970) II SCWR 606: (1971) 2 SCJ 68: AIR 1971 SC 1011: 1971(2) SCR 191: 1970(2) SCC 871: 1970 SLR 863; Appar Apar Singh v. State of Punjab, (1971) 1 SCWR 226: (1971) 2 SCJ 566: 1971 SLR 71; Kalam Das v. Chief Electoral Officer, 1972 Simla LJ 406: AIR 1972 HP 131. 44. Reinstated and Reverted — Appellant suspended and thereafter dismissed. Orders set aside by Court. Appellant reinstated in the post and by the same order reverted to his substantive post, the post in which he was officiating having been filled by another officer approved by U.P.S.C. Order held valid. Naresh Chandra Saha v. Union Territory of Tripura, AIR 1970 SC 364:1970(2) SCR 639: 1969(3) SCC 22: 1969 SLR 839: (1971) 2 SCJ 520.

186


[R . 11

45. Reversion on Acceptance of Representation of Respondent — Reversion not by way of punishment or because he was not approved by Public Service Commission but as a consequence of the acceptance of the representation of R.2. Reversion did involve civil consequence for the petitioner. In these circumstances, it was incumbent on the Government to give notice to the petitioner to show cause against the representation of R.2. Non-issue of that notice violated the principles of natural justice. S. Hardayal Singh v. State of Punjab, 1970 SLR 903; Mangilal v. Union of India, 1981 (1) SLR 745: 1982 (2) SLJ 551: 1982 Lab IC 1106. 46. Reversion: Railways — Railway Establishment Code Rule, 157, prohibiting reversion after expiry of two years, does not apply to persons promoted on ad hoc basis. Ravi Dutt v. Union of India, (1983) 2 SLR 332, 336, 337 (P&H). 47. Reversion: Policy Decision — On the formation of the Food Corporation of India, employees of the Ministry of Food were transferred to that Corporation and a decision was taken that employees who had been promoted ad hoc and transferred regularly should have been taken to have completed the one year period and regularised. However, petitioner satisfied this condition but was nevertheless reverted. This reversion was held to be illegal. H.N.Bharati v. Food Corporation of India, (1983) 2 SLR 235 (P&H). Upper Division Clerk in E.S.I. office was subjected to disciplinary proceedings. Reversion to the post of Lower Division Clerk for a period of five years was ordered. It was held that the disciplinary authority was competent to give directions regarding conditions of restoration to the grade or post or service from which the employee was reverted. G.Venugopal v. Director of istration, Appellate Authority, (1993) 4 SLR 81 (CAT Hyderabad). 48. Reversion: Ad hoc Ex-serviceman — An ad hoc employee was appointed against a post reserved for ex-Emergency Commission Officer. He was reverted and replaced by a person not belonging to category of ex-serviceman. The reversion was held to be illegal. B.K. Sachdev v. State of Haryana, (1983) 1 SLR 563 (P&H). 49. Reversion due to qualification — Where appointment was made to the post of peon, on comionate grounds fully knowing the qualification of the candidate, subsequent order of reversion on the ground that his qualification was less then the prescribed, held contrary to Rules which provided reversion only on the ground of unsatisfactory work. Anil Kumar v. State of Punjab, 2003 (3) SLR 717 P&H (DB). 50. Reversion after long officiation— Where a person had held the post of District Inspector for 11 years, his reversion on the ground that the appointment was irregular or temporary, was held to be unfair after he had served for over a decade in that post. M.A. Hameed v. State of A.P., 2001 (7) SLR 718 SC; Similarly for reversion after 21 and 25 years, see A.T. Nathamuni v. D. Arumugam, 2002 (4) SLR 483 Mad. 51. Reversion under court orders— Where promotion was wrongly made which were set aside by the division bench of High Court, the candidate was subsequently reverted, it was held that the order of reversion was not bad in law. D. Narsimhulu v. A.P. Legislative Assembly, 2003 (3) SLR 475 AP (DB). See also Rajinder Singh v. State of Punjab, 2003 (2) 258 P&H (DB).

R . 11]


187

52. Reversion while on Deputation — Civil servant is on deputation. If the other Government is willing to retain him on the post on which he is deputising, the parent Government has no right to orders of his reversion and direct the other Government to post him on the lower post. Sudershan Sood v State of Punjab, 1969 Cur LJ 846: 1969 SLR 715. For probationer see Mehar Singh Capt. v. Indian Council of Agricultural Research, ATR 1990 (1) 608 (CAT) (Chandigarh). 53. Reversion on Being Recalled — Services of petitioner were placed at the disposal of Beas Project Authorities for appointment as Executive Engineer. On the report of borrowing authorities, he was recalled and appointed to his substantive post of Assistant Engineer. Order of recall and appointment does not amount to reduction in rank. Joginder Singh v. State of Punjab, 1969 Cur LJ 58. 54. Reversion from Deputation for Unsuitability — A reversion on the ground of unsuitability is in consonance with the on which the officiating post is held. Such a reversion cannot be considered to be a reduction in rank by way of punishment to which Art.311 could be attracted. Nau Nihal Singh v. Union of India, 1971 Lab IC 1267: 1971 (1) SLR 566 (Delhi); S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 Lab IC 1748: 1975 (2) SLR 740: 1976 SLJ 271; Kalam Singh v. Chief Electoral Officer, 1977 (1) SLR 726. See also M. Venkatanarayana v. General Manager, South Central Railway, (1983) 3 SLR 486 (AP). 55. Reversion from Deputation by Way of Punishment — The appellant while on deputation was holding a post in higher scale of pay. He was reverted neither because the temporary post on which he was working was abolished nor because he was found unsuitable to continue. The parent department also did not want him back. Held, reversion by itself will not be a stigma, but if there is evidence that the order of reversion is not “a pure accident of service” but an order in the nature of punishment, Art. 311 will be attracted. Order of reversion under the circumstances of the case was found an act of punishment and reduction in rank. Order set aside. K.H. Phadnis v. State of Maharashtra, (1971) 1 SCWR 532: AIR 1971 SC 998: 1971 Supp SCR 118: 1971(1) SCC 790: 1971(2) SLR 345: 1971 Lab IC 721: (1973) 1 SCJ 420; C. Thiraviam Pillai v. State of Kerala, 1976 (2) SLR 395 and 571. 56. Replacement of Services as Work and Conduct Unsatisfactory — Petitioner was working in Welfare Department and was appointed as a temporary Kanungo in Election Department. He was reverted to Welfare Department after six years as his work and conduct was found unsatisfactory by his immediate officer. He was not called upon to explain and nothing went out of office to cast aspersion upon him or to put stigma upon his career. Held, the order of reversion was not by way of punishment. Kalam Das v. Chief Electoral Officer, 1977 (1) SLR (1) 726. 57. Officiating and Temporary Servants Entitled to Protection in Same Manner as Permanent Servants — It is well settled that officiating and temporary Government servants are also entitled to the protection of Art. 311 (2) in the same manner as permanent Government servants, if the Government takes action against them by meeting out one of the punishment i.e. dismissal, removal or reduction in rank. Appar Apar Singh v. State of Punjab, (1971) 1 SCWR 226: (1971) 2 SCJ 566: 1971 SLR 71; R.S. Sial v. State of U.P., (1974) 1 SLR 829: (1974) 1 SCWR 749: 1974 SLJ

188


[R . 11

396: (1974) 2 SCJ 333; State of Maharashtra v. V.G. Koppar, AIR 1981 Bom 131. See also M. Venkatanarayan v. General Manager, South Central Railway, (1983) 3 SLR 486 (AP); Giridhari Behera v. State of Orissa, 1990 (2) SLJ 225 (CAT Bhubaneswar). 58. Reversion of Employee Appointed on Ad hoc Basis — Reversion of an employee appointed/promoted purely on ad hoc basis will not attract Article 311 where the order of reversion ex facie does not show that he was being reverted as a measure of punishment or the order casts any stigma on him. The court will not normally go behind the order to see if there was any motivating factor behind that order. S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 Lab IC 1748: 1976 SLJ 271: 1975 (2) SLR 740; Braij Nath Rai v. Union of India, 1976 (2) SLR 425; Satyadeo Singh v. State of Bihar, 1981 (3) SLR 671. See also Lingraj Tripathy v. State of Orissa, (1984) 2 SLR 569 (Orissa) (DB); Balkrishna Oza v. State of Gujarat, 1997 (4) SLR 94 (Gujarat). 59. Challenge to proposed reversion — Challenge to a show cause notice proposing to revert the candidates. The candidates entitled to give reply to show cause and represent their case. It was held that the challenge to show cause at this stage by writ petition was premature. Bhup Singh v. State of Haryana, 2002 (6) SLR 353 P&H (DB) A challenge to the order of reversion made after 8 years of ing of order held to be highly belated especially in view of the fact that the candidate was a mere probationer. Jai Prakash Gupta v. Board of Education, Haryana, 2001 (5) SLR 704 P&H (DB). MAJOR PENALTIES Clause (vii) Explanation, (vii) Compulsory Retirement Superannuation SYNOPSIS 1.

Compulsory retirement ... ............................................................................................... 190

2.

Object of compulsory retirement ... ................................................................................ 191

3.

Application of Article 16 of Constitution ... ................................................................... 191

4.

Application of Article 311 (2) of Constitution ... ........................................................... 191

5.

Compulsory retirement simpliciter ... ............................................................................. 192

6.

General order for compulsory retirement ... ................................................................... 192

7.

Fundamental Rule 56: Age of retirement of Central Civil Servants ... ........................... 192

Fundamental Rule 56 (a) 8.

Compulsory retirement before attaining the age of superannuation ... ........................... 195

9.

Retirement age ... ........................................................................................................... 195

R . 11]


10. Change in the age of retirement or superannuation ... .................................................... 196 11. Dispute about age of Civil servants ... ............................................................................ 196 12. Enquiry into correctness of date of birth after retirement ... ........................................... 196 13. Question as to age of Judge of High Court ... ................................................................. 196

Fundamental Rule 56 (c) 14. Age of superannuation of Ministerial Government servants who entered in service on or before 31.3.1938 ... .................................................................................................... 197

Fundamental Rule 56 (d) 15. Extension of service or retention beyond the age of superannuation ............................. 197 16. Retention in service for purpose of enquiry ... ............................................................... 197

Fundamental Rule 56 (j) 17. “Public Interest” ............................................................................................................ 197 18. Compulsory retirement in “Public Interest” ... ............................................................... 199 19. Compulsory retirement and misuse of power ................................................................. 200 20. On overall assessment of service record ........................................................................ 201 21. Absence of words “public interest” in order .................................................................. 201 22. Compulsory retirement under F.R. 56 (j) – No opportunity to show cause required .......................................................................................................................... 202 23. Compulsory retirement under F.R. 56 (j), does not involve civil consequences ............ 202 24. Fundamental Rule 56 (j), absolute right of authority to retire ... .................................... 203 25. Compulsory retirement under F.R. 56 (j), F.R. 7 is not attracted ... ............................... 203 26. Fundamental Rule 56 (j): Validity of ... ......................................................................... 204 27. Fundamental Rule 56 (j) (i): Application of ... ............................................................... 204 28. Compulsory retirement under F.R. 56 (j)– Analysis of case-law .................................. 204 29. Intention of holding enquiry, then deciding to retire — (ii) Dropping enquiry in progress and ordering compulsory retirement ... ..................... 205 (iii) Charges dropped: Compulsory retirement not based on any material, ... ............... 206 (iv) Charges dropped, Promoted, shortly thereafter compulsorily retired – Order quashed ... ...................................................................................................................... 206 30. Compulsory retirement on of Involvement in criminal case ............................. 206 31. Superannuation according to new rules, no penalty ....................................................... 206 32. Competency of authority to retire................................................................................... 206 33. Minimum period of service ............................................................................................ 207 34. Compulsory retirement before age of superannuation — (i) Rules for .................................................................................................................... 207 (ii) On completing reasonably long period of qualifying service ................................... 207 (iii) On completing unreasonably short period of service .............................................. 207

189

190


[R . 11

(iv) For being unfit ... ..................................................................................................... 208 (v) For istrative reasons ........................................................................................ 208 (vi) For physical incapacity ............................................................................................ 208 (vii) For unsatisfactory record of service ....................................................................... 208 (viii) Saying employee outlived his utility ... ................................................................. 209 (ix) Without asg reason ........................................................................................ 209 35. Compulsory retirement with stigma ... ........................................................................... 209 36. Compulsory retirement: Order with or without stigma .................................................. 209 37. Compulsory retirement: Application of principle of natural justice ... ........................... 210 38. Compulsory retirement: Speaking order not required nor opportunity of being heard ... 210 39. Compulsory retirement without giving reasonable opportunity to show cause .............. 210 40. Compulsory retirement with reduction of pension ......................................................... 211 41. Compulsory retirement and past record ......................................................................... 211 42. Victimisation ... .............................................................................................................. 211 43. Compulsory retirement on integration of State .............................................................. 211 44. Compulsory retirement and integrity.............................................................................. 211 45. Compulsory retirement and judicial review ................................................................... 212 46. Appropriate Authority to order compulsory retirement .................................................. 213 47. Appointing authority cannot delegate its power to issue notice to a subordinate ........... 213 48. Compulsory retirement by three month”s notice or salary in lieu of notice ................... 214 49. Notice pay or notice period ............................................................................................ 214 50. Notice to retire before age of 58 years ........................................................................... 214 51. Notice, date from which takes effect and period of ........................................................ 214 52. Order of compulsory retirement is not one for dismissal or removal unless it suffers from any vice ................................................................................................................. 215 53. Well established propositions ... ..................................................................................... 215 54. Offer of retirement: Revocation of ................................................................................. 216 55. Voluntary retirement: Revocation .................................................................................. 216 56. Punishment of compulsory retirement based to a considerable extent on material not produced during enquiry ... ............................................................................................ 216 57. Punishment of compulsory retirement for possession of disproportionate assets ... ....... 217 58. Wrong reference to power will not vitiate action if it can be justified under some other powers .. ......................................................................................................................... 217 59. Notes below F.R. 56, part of the rule ............................................................................. 217 60. Voluntary retirement: Various points .. .......................................................................... 217

1. Compulsory Retirement — While a minimum service is guaranteed to the Government servants the Government is given the power to compulsorily retire its servants. Compulsory retirement can be made either by way of punishment or in accordance with the provisions relating to their superannuation or retirement which

R . 11]


191

shall not amount to a penalty. The penalty of compulsory retirement can only be imposed by following the procedure prescribed in these Rules and complying with the provisions contained in Article 311(2) of the Constitution. Compulsory retirement according to service rules as contained in Fundamental Rule 56 does not amount to dismissal or removal and does not involve civil consequences. 2. Object of Compulsory Retirement — The object of premature retirement is to see that the inefficient and incorrect persons are removed, but no sufficient material is available to dismiss or remove them from the Government service after enquiry, and as such, they are weeded out from service with a view to secure efficiency in public service and to maintain honesty and integrity amongst the service persons. However, while taking a decision to retire a Government employee, prematurely from the service, the Government has to consider the entire record of the Government servant including the latest reports. K.I. Patel v. M.N. Vaishnava, Chief Conservator of Forest, 1999(1) SLR 646 Guj. The object and purpose of the rule of compulsory retirement have been considered in series of decisions by the Supreme Court. The object of compulsory retirement is only to remove such personnel from the Government service, who is found lax, corrupt and inefficient or not up to the mark or has out-lived his utility and the object or compulsory retirement is not to victimise the service personnel. Bahadur Singh v. State of Rajasthan, 1981 (2) SLR 582 (Raj); Kartar Singh v. Punjab State, 1982 (1) SLR 307. For compulsory retirement in public interest see State of Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1998(1) SLR 67: (1998) 1 SCJ 305. See also Ram Pravesh Shrama v. Coal Mines Provident Fund Orgnization, Delhi, 2004 (6) SLR 795 (Jharkhand) 3. Application of Article 16 of Constitution — Article 16 does not prohibit the prescription of reasonable rules for compulsory retirement. T.C. Shivcharana Singh v. State of Mysore, AIR 1965 SC 280: 1967(2) LLJ 246: 1967(15) FLR 224; P. Radhakrishna v. Government of A.P., 1977 SLJ 211: 1977 (1) SLR 258: AIR 1977 SC 854: 1977(2) SCR 365: 1977(1) SCC 561: 1977 Lab IC 537. 4. Application of Article 311 (2) of Constitution — Article 311 deals with termination of service. There are two exceptions to the protection afforded by Article 311 (2). First, where a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which is reasonably fixed. Secondly, where he is compulsorily retired under the rules which prescribe the normal age of superannuation and provide a reasonably long period of qualifying service after which alone compulsory retirement can be ordered. Compulsory retirement under a valid rule does not attract the provisions of clause (2) of Article 311 because such retirement is not conceived as a penalty but as the exercise of the right reserved to Government of retiring a Government servant after he has served for a certain length of time. Tara Singh v. State of Rajasthan, AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86: 1975 (1) SLR 777: 1975 SLJ 619; Union of India v. S.A. Razak, 1980 Lab IC 1387: AIR 1981 SC 360: 1981(2) SCC 74: 1980(3) SLR 587; Baikunthanath Das v. Chief District Medical Officer, 1982 (1) SLJ 648: 1981 (3) SLR 459; Kartar Singh v. Punjab State, 1982 (1) SLR 307.

192


[R . 11

An ex parte enquiry had been carried out by the Vigilance Department against the petitioner. On the basis of the report of the Vigilance Department the Screening Committee recommended for compulsory retirement and the petitioner was compulsorily retired. Held, the order of compulsory retirement suffers from the vice of inflicting punishment on the petitioner and is violative of Article 311 of the Constitution. If the allegations against the petitioner were found to be substantiated by the Vigilance Department, it was the bounden duty to hold an enquiry against the petitioner for providing a proper opportunity to him rather than to have adopted this short cut of removing him from service. Order quashed. Petitioner reinstated. Surendra Shankar Awasthi v. State of U.P., 1982 Lab IC 548 (All). 5. Compulsory Retirement Simpliciter — Compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 or under the service rules. It is in fact compulsory retirement in accordance with the and conditions of service. State of Haryana v. Inder Prakash Anand, AIR 1976 SC 1841: 1976 Supp SCR 603: 1976(2) SCC 977: 1976 (2) SLR 223: 1976 SLJ 497; Chief Justice, A.P. v. L.V.A. Dixitulu, 1979 SLJ 332: (1979) 1 SLR 1: AIR 1979 SC 193: 1979(2) SCC 34. It is no more res integra that premature retirement is not a punishment and the employee who is ordered to prematurely retired from the Government service is entitled to all pensionary benefits. What safeguard is provided is that there must be some material on the record to form opinion and in case there is some material on record, then the decision taken by the authority may not be subject to scrutiny of this Court, unless the petitioner has made out a case of mala fide exercise of powers or where the Government has taken resort to its powers of retiring its employee prematurely with the object to punish the employee concerned. K.I. Patel v. M.N. Vaishnava, Chief Conservator of Forest, 1999(1) SLR 646 Guj. 6. General Order for Compulsory Retirement — Where the general order for compulsory retirement is applicable to all employees, the individual application of the order in a given case cannot offend Article 16. P. Radhakrishna Naidu v. Government of A.P., 1977 SLJ 211: 1977 (1) SLR 258: AIR 1977 SC 854: 1977(2) SCR 365: 1977(1) SCC 561. See also Union of India v. Dr. S. Baliar Singh, AIR 1998 SC 539: 1998(2) SCC 208: 1997(9) JT 287: 1998(1) SLR 103: (1998) 1 SCJ 348. 7. Fundamental Rule 56 : Age of Retirement of Central Civil Servant — Fundamental Rule 56 provides — (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. (b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Note — In this clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or a workcharged establishment.

R . 11]


193

(c) A ministerial Government servant who entered Government service on or before the 31st March, 1938 and held on that date — (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity under clause (d) of Rule 14 and continued to hold the same without interruption until he was confirmed in that post, shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Note — For the purpose of this clause, the expression “Government service” includes service rendered in a former Provincial Government. (cc) A workman referred to in clause (b) or a ministerial Government servant referred to in clause (c) may be granted extension of service under very special circumstances to be recorded in writing after he attains the age of sixty years with the sanction of the appropriate authority. (d) A Government servant to whom clause (a) applies other than a workman referred to in clause (b) or a ministerial Government servant referred to in clause (c), may be granted extension of service after he attains the age of fifty-eight years with the sanction of the appropriate authority if such extension is in public interest and the grounds therefore are recorded in writing; Provided that no extension under this clause shall be granted beyond the age of sixty years except in very special circumstances. (e) A Government servant in Group D (Class IV) service or post shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Group D (Class IV) employee of the Secretariat Security Force who initially enters service on or after the 15th day of September, 1969 shall retire from service on the afternoon of the last day of the month in which he attains the age of fiftyeight years. (f) Deleted. (ff) Deleted. (g) The President may by order direct that a Civil Engineer of the Public Works Department shall retire on reaching the age of fifty years, if he has not attained the rank of Superintending Engineer. (h) Relates to Chief Engineer, P.W.D. and Consulting Engineer, not reproduced. (i) A military officer serving in a civil department shall cease to be in civil employ on the date he attains the age of fifty-eight years.

194


[R . 11

(j) Notwithstanding anything contained in this Rule, the appropriate authority shall, if it is of the opinion that it is in public interest to do so have absolute right to retire Government servant by giving him notices of not less than three months in writing or three months” pay and allowances in lieu of such notice: (i)

if he is in Group A (Class I) or Group B (Class II) service or post and had entered Government service before attaining the age of thirty-five years after he has attained the age of fifty years;

(ii)

in any other case after he has attained the age of fifty-five years:

Provided that nothing in this clause shall apply to a Government servant referred to in clause (c) who entered Government service on or before 23rd July, 1966. (k) Any Government servant may by giving notice of not less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years if he is in Group A (Class I) or Group B (Class II) service or post and had entered Government service before attaining the age of thirty-five years and in all other cases after he has attained the age of fifty-five years; Provided that — (i) nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July, 1966, and (ii) it shall be open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. (l) Notwithstanding anything contained in clause (j) the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a Government servant in Group C (Class III) service or post who is not governed by any pension rules, after he has completed thirty years service by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice. (m) A Government servant in Group C (Class III) service or post who is not governed by any pension rules may by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has completed thirty years service. Note 1 : “Appropriate authority”. means the authority which has the power to make substantive appointments to the post of service from which the Government servant is required or wants to retire. Note 2 : The three months notice referred to in clauses (j), (k), (l) or (m) may be given before the Govt. servant attains the age specified in clause (j) and (k) or has completed 30 years of service specified in clause (l) and (m), provided that the retirement takes place after he has attained the relevant age or has completed 30 years service as the case may be. Note 3 : In computing the notice period of three months referred to in clauses (j) and (m), the date of service of the notice and the date of its expiry shall be excluded.

R . 11]


195

Note 4 : A Government servant, including a workman, who is granted extension of service after he has attained the prescribed age of superannuation, shall not be promoted to another post during the period of extension. Note 5 : The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School certificate or extracts from Birth . The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller and Auditor General in regard to persons serving in the Indian Audit and s Department, or an of Union territory under which the Government servant is serving, if — (a) a request in this regard is made within five years of his entry into Government service, (b) it is clearly established that a genuine bona fide mistake has occurred; (c) the date of birth so altered would not make him ineligible to appear in any school or University or Union Public Service Examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service. Note 6 : A Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of fifty-eight or sixty years, as the case may be. Fundamental Rule 56 (a) 8. Compulsory Retirement Before Attaining the Age of Superannuation — (i) When the rules fix both an age of superannuation and an age for compulsory retirement, the services of a civil servant can be terminated between these two points of time. Government can reserve to itself a right to ask any employee to retire on attaining the age of compulsory retirement. Shyamlal v. State of U.P., AIR 1954 SC 369: 1955(1) SCR 26: 1954 SCJ 493; Batahari Jena v. State of Orissa, (1971) 1 SCWR 643: AIR 1971 SC 1516: 1971 Supp SCR 352: 1971(2) SCC 232: 1971 Lab IC 948; Sahadev Patnaik v. State of Orissa, 1974 (2) SLR 778. (ii) Compulsory retirement as per the rules without any enquiry does not violate Article 311 (2) of Constitution. Vithalrao Ram Chandra Ghorpade v. State of Maharashtra, 1973 (1) SLR 255; Rahas Behari Rajguru v. State of Orissa 1981 (3) SLR 78. 9. Retirement Age — Under the existing system there is no uniform retirement age for all Government servants. The retirement age is fixed not merely on the basis of the interest of the Government servant but also depending on the requirements of the

196


[R . 11

society. Union of India v. Col. J.N. Sinha, 1970 SLR 748: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458: 1971 Lab IC 8: (1971) 1 SCJ 655. 10. Change in the Age of Retirement or Superannuation — There is no provision which takes away power of the Government to increase or reduce the age of superannuation. Bishan Narain Mishra v. State of U.P., AIR 1965 SC 1576; N. Lakshmana Rao v. State of Karnataka, 1975 (2) SLR 272: 1975 SLJ 560: 1975 Lab IC 1121: AIR 1975 SC 1646: 1975 Supp SCR 328: 1976(2) SCC 502. 11. Dispute About Age of Civil Servants — (i) Where there is dispute about the age, the civil servant has to be given an opportunity to show his correct date of birth. Retirement without such opportunity amounts to his removal from service and is null and void, being contrary to principles of natural justice. State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269: 1967(2) SCR 625: 1967 SLR 465: (1967) 2 SCJ 339: (1967) 2 SCR 626: (1967) II SCWR 443; Daksha Prasad Deka v. I.G.P., AIR 1967 Assam 13; E. Rama Varama Raja v. State of Kerala, AIR 1969 Kerala 317: 1969 SLR 225 (F.B.); Laxmi Narayan v. State of Rajasthan, 1976 SLJ 660: 1977 (1) SLR 44: Sardar Dewan Singh v. Union of India, 1977 (2) SLR 793; Dalip Singh v. State of Punjab, 1982 (1) SLR 265. (ii) There was a discrepancy which was rather wide since the year of birth, according to one record was 1917, and according to another record 1927. In view of this considerable discrepancy, the employer appointed its Medical Board to fix the age of appellant and according to assessment of the age by the Medical Board, it was that he was 51 on 13.6.1975. Supreme Court held “we see no reason to ignore this scientific fixation of age” when we have records which are flagrantly conflicting”. Jiwan Kishore v. Delhi Transport Corporation, AIR 1980 SC 1251: 1980 Supp SCC 678: 1980 SLJ 704: 1980 (2) SLR 513. (iii) When the petitioner allowed two entries to continue and thereby led the Government to choose the entry which prima facie appeared genuine and had the of confirmatory evidence, he cannot turn round and say that he has been prejudiced. He is guilty of acquiescence and the case also attracts the doctrine of estoppel by negligence. Makaradhwaj Singh v. State of M.P., 1974 SLJ 128 (MP). (iv) Date of birth as stated in the Matriculation certificate must be accepted to be correct. Pramatha Nath Chaudhury v. State of West Bengal, 1981 (1) SLR 570: (1981) 1 SLJ 415. 12. Enquiry into Correctness of Date of Birth After Retirement — The power of the Government to hold an ordinary enquiry into the correctness of the date of birth of a Government servant does not come to an end at the retirement of the Government servant from service. R.S. Kalolinath v. State of Mysore, 1970 SLR 869. 13. Question as to Age of Judge of High Court — The President acting under Article 217 (3) performs judicial function and he cannot act on the advice of his Minister. Union of India v. Jyoti Prakash Mitter, (1971) 1 SCWR 355: AIR 1971 SC 1093: 1971(3) SCR 483: 1971(1) SCC 396: (1971) 2 SCJ 501.

R . 11]


197

Fundamental Rule 56(c) 14. Age of Superannuation of Ministerial Government Servants who Entered in Service on or before 31.3.1938 — Fundamental Rule 56 (c) — Government of India letter No. 3/12/68 H.M.T., dated 25th March, 1968 — The only requirement is that the person concerned should have “entered Government service” on or before 13.3.1938. It does not say that he should be a ministerial Government servant on or before that date. Order of retirement quashed. Lala Ram v Union of India, 1969 DLT 622 (Delhi); Jagan Nath Sharma v. Union of India, 1969 SLR 551 (Delhi). Also see Union of India v. Mool Chand Dasumal Pardesani, (1972) II SCWR 633: AIR 1971 SC 2369: 1972(1) SCR 273: 1971 Lab IC 1390 and Lila Ram Bhatia v. Delhi istration, 1972 SLR 468. Government service would include not only service rendered under the Central Government and the former Provincial Government but also that rendered under the exprincely State. N. S. Vatsraj v. Union of India, 1976 (2) SLR 601. Fundamental Rule 56(d) 15. Extension of Service or Retention Beyond the Age of Superannuation— A Government servant may be retained in service after the age of superannuation. The rule however does not give any right to an employee to continue in service after the age of superannuation. It is a discretion which Government can exercise in certain cases. State of Assam v. Premadhar Baruah, (1970) II SCWR 197: AIR 1970 SC 1314: 1971(1) SCR 503: 1970(2) SCC 211: 1970 SLR 529: (1971) 2 SCJ 626; Union of India v. J.N. Sinha (1971) 1 SCJ 655: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458: 1970 SLR 748; B. Narayana Murthy v. State of A.P., (1971) II SCWR 459: AIR 1971 SC 1716: 1971 Supp SCR 741: 1971(2) SCC 425: 1971(2) SLR 888; State of Assam v. Basanta Kumar Das; (1974) 1 SCJ 170: 1973 SLJ 265: AIR 1973 SC 1252: 1973(3) SCR 158: 1973(1) SCC 461: 1973(1) SLR 921; S.N. Pallegal v. State of Mysore, 1973 SLJ 283: AIR 1973 SC 671: 1973(3) SCR 199: 1973(4) SCC 158: 1973(1) SLR 1205: (1974) 1 SCJ 230. 16. Retention in Service for Purpose of Enquiry — Retention of a Government servant in service after the age of superannuation for the purpose of enquiry was not proper and the extension of service was illegal. State of West Bengal v. Nripendra Nath Bagchi, (1966) 2 SCJ 59: (1966) I SCWR 169: AIR 1966 SC 447: 1966(1) SCR 771; S. Subba Rao v. State of Mysore, AIR 1968 Mys 81. If a disciplinary enquiry against the civil servant cannot be concluded before the date of superannuation the course open to the Government is to an order of suspension and refuse to permit the public servant to retire and retain him in service till such enquiry is completed and a final order is ed. State of Punjab v. Khemi Ram, AIR 1970 SC 214: 1970(2) SCR 658: 1969(3) SCC 28: 1969 SLR 833: 1970 Lab IC 271: (1969) II SCWR 718: (1971) 1 SCJ 263. Fundamental Rule 56(j) 17. Public Interest — The expression “public interest” in the context of premature retirement has a well settled meaning. It refers to cases where the interest of public istration requires the retirement of a Government servant who with the

198


[R . 11

age of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the Government service to which he belongs. No stigma or implication of misbehaviour is intended and punishment is not the objective. Gyan Singh Mann v. High Court of Punjab, AIR 1980 SC 1894: 1981(1) SCR 507: 1980(4) SCC 266: 1980 Lab IC 983: 1980 Lab IC 983: 1980 (3) SLR 18: 1981 (1) SLJ 121; State of Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1988(1) SLR 67: (1998) 1 SCJ 305. The exercise of power must be bona fide and promote public interest. When an order is challenged and its validity depends on its being ed by public interest, the State must disclose the material so that court may be satisfied that the order is not undesirable for want of any material to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of “public interest” justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the but they are not absolved from the minimal review well settled in istrative law and founded on Constitutional obligations. The whole purpose of the rules is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution. It is in public interest to retire a never do well, but to juggle with confidential reports when a man”s carrier is at stake is a confident trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision making. The appropriate authority, not the court, makes the decision, but, even so, a caveat is necessary to avoid misuse. Baldeo Raj Chadha v. Union of India, 1980 (3) SLR 1: AIR 1981 SC 70: (1981) 1 SCJ 293: 1981 (1) SLJ 188 (SC). With the apathy of state to produce the service records of the Government servant, the court is entitled to draw the adverse inference that the said records if produced would be unfavourable to the state. Kaladhan Mukherjee v. State of West Bengal, 1980 SLJ 47: 1981 (1) SLR 20; R. Krishnaswamy v. Union of India, 1982 (2) SLR 17. If a Police Officer indulges in corruption, his retirement is always in a public interest. Jaidev Singh, ASI v. State of Haryana, 2002(2) SLR 361 P&H. Where within a few months of crossing the efficiency bar the order of compulsory retirement in public interest was made and there was no evidence to show that suddenly there was such deterioration in the quality of appellant”s work or integrity that he deserved to be compulsorily retired, the order was held bad and quashed. Swami Saran Saxena v. State of U.P., 1979 (2) SLR 781: 1980 SLJ 1 (SC). Petitioner had been promoted in January 1975. There was nothing on record produced on behalf of State to indicate that there were any adverse reports about his conduct or integrity between January 1975 and October 1975. The decision of State Government in October 1975 to retire him in public interest was held capricious and arbitrary. N.M. Linge Gowda v. State of Karnataka, 1981 (1) SLJ 133: 1981 (1) SLR 147. In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. D. Ramaswami v. State of Tamil Nadu, 1982 (1) SLJ 194: 1982 (1) SLR 690: 1982 Lab IC 443: AIR 1982 SC 793.

R . 11]


199

18. Compulsory Retirement in “Public Interest” — The compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement does not amount to a dismissal or removal and therefore it is not within the vice of Article 311. There is no stigma involved in Compulsory retirement. Shyam Lal v. State of U.P., AIR 1954 SC 369: 1954 SCJ 493; T.C. Shivcharan Singh v. State of Mysore, AIR 1965 SC 280; State of U.P. v. H.C. Kaushal, 1971 (2) SLR 621; P. Radhakrishna v. Govt. of A.P., AIR 1977 SC 854: 1977 SLJ 211: 1977 (1) SLR 258. See also Jai Chand v. Union of India, (1985) 3 SLR 559 (Delhi) (DB); J.D. Shrivastava v. State of M.P. (1984) 1 SLR 342: (1984) 1 SCJ 94; Gurudev Singh v. State of Punjab, 1997 (1) SLR 197; Raj Kumar Mehta v. State of Haryana, 1997 (1) SLR 65 (P&H): State of Madhya Pradesh v. Indra Sen Jain, AIR 1998 SC 982: 1998(1) SCC 451: 1997(9) JT 230: 1988(1) SLR 67: (1998) 1 SCJ 305. The premature retirement of a Government servant in public interest casts no stigma and is not punishment; therefore, Article 311 of Constitution is not attracted. Baikunthnath Das v. Chief District Medical Officer, Baripada, 1982 (1) SLJ 648 (Orissa): 1981 (3) SLR 459; Kartar Singh v. Punjab State, 1982 (1) SLR 307. What is “public interest” was explained in the class decision of Supreme Court in Union of India v. Col. J.N. Sinha, AIR 1971 SC 40: 1971(1) SCR 791: 1970 SLR 748 (SC). It was pointed out that the object of premature retirement of a Government servant was to weed out the inefficient, corrupt, dishonest employees from the Government service. The public interest in relation to public istration means that only honest and efficient persons are to be retained in service while the services of the dishonest or the corrupt or who are almost dead wood, are to be dispensed with. The court observed: “Compulsory retirement involves no civil consequences. The aforementioned Rule 56(j) is not intended for taking any penal action against the Government servants. That Rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the Rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not insufficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in Government organisations, there is a good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual Government servant and the interest of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in pubic interest. It is true that a compulsorily retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but then as the Rule

200


[R . 11

provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Three months” notice is provided so as to enable him to find out other suitable employment. ……In our opinion, the High Court erred in thinking that the compulsory retirement involves civil consequences.” See also State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR 197: 1999(94) FJR 534: 1999(6) SLR 324; H.C. Gargi v. State of Haryana, 1986(4) SCC 158: AIR 1987 SC 65: 1986(3) SLR 57 (SC); Gian Singh Man v. High Court of Punjab & Haryana, 1980(4) SCC 266: AIR 1980 SC 1894; Kailash Chandra Agarwal v. State of M.P., 1987(3) SCC 513: 1987(4) ATC 209: AIR 1987 SC 1871: 1987(5) 171 (SC); Union of India v. M.E. Reddy, 1980(2) SCC 15: AIR 1980 SC 563: 1979(2) SLR 792 (SC); Baikuntha Nath Das v. Chief Distt. Medical Officer, 1992(2) SCC 299: 1992(21) ATC 649: 1992(2) SLR 2 (SC); Posts & Telegraphs Board v. C.S.N. Murthy, 1992(2) SCC 317: 1992(21) ATC 663: 1992(2) SLR 352 (SC). 19. Compulsory retirement and misuse of power — There were absolutely no adverse entries in respondent”s confidential record. In the reder filed in Supreme Court also, nothing averred that the respondent”s service record revealed any adverse entries. The respondent had successfully crossed the efficiency bar at the age of 50 as well 55. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Government had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. Held that if the impugned order is viewed in the light of these facts, it could be said that the order of compulsory retirement was ed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to the order of compulsory retirement, it was held that the impugned order was liable to be set aside. State of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109: 2001(3) SCC 314: 2001(3) JT 223: 2001(2) LLJ 1140: 2001(2) SCJ 273. In K.K. Kandaswamy v. Union of India, AIR 1996 SC 277: 1995(6) SCC 162: 1995(7) JT 80: 1995 Lab IC 2709: 1997(1) LLN 170: 1995(31) ATC 479: 1995(6) SLR 47 (SC), Supreme Court observed that: “9. While exercising the power under Rule 56(j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee required to be compulsorily retired in public interest. The Government is given power to energise to machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the Government employee is in the public interest. Court would not interfere with the order”.

R . 11]


201

Therefore the opinion must be based on the material on record otherwise it would amount to arbitrary or colourable exercise of power. It was also held that the decision to compulsorily retire an employee can, therefore, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision. State of Gujarat v. Suryakant Chunilal Shah, 1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR 197: 1999(94) FJR 534: 1999(6) SLR 324. 20. On Overall Assessment of Service Record — It cannot be gainsaid, that the service record of Government servant, his character roll entries etc. are relevant factors for deciding whether it is in public interest to retire a Government servant compulsorily. N.V. Putta v. State of Mysore, AIR 1972 SC 2185: 1973(1) SCR 304: 1972(3) SCC 739: 1972 SLR 525: (1973) 1 SCJ 339; Shikar Chand Jain v. State of U.P., 1974 SLJ 106. Where the records do demonstrate that the opinion formed is bona fide and not influenced by any extraneous matters, cannot be said that the authority ordering compulsory retirement has acted in abuse of the power which vested in him. M.L. Kalia v. Union of India, 1979 (3) SLR 334. Where there is nothing on record to the impugned order, the order amounts to an abuse of power which vested in the authority concerned. Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49: 1979(2) SCR 202: 1979(2) SCC 491: 1979 SCJ 1: 1979 (1) SLR 130; 1978 Lab IC 1641; Brij Behari Lal Aggarwal v. Hon”ble High Court of M.P., 1981 Lab IC 137: (1981) 2 SCJ 90: AIR 1981 SC 594: 1981(2) SCR 297: 1981(1) SCC 490: 1981 (1) SLJ 412: 1980 (3) SLR 583; D. Ramaswami v. State of Tamil Nadu, AIR 1982 SC 793: 1982(3) SCR 75: 1982(1) SCC 510: 1982 (1) SLJ 194: 1982 (1) SLR 690: 1982 Lab IC 443. Consideration of censure in the year 1984 and latest entry recording absence shows no application of mind and therefore, order of compulsory retirement was quashed. Mahabir Singh v. State of Haryana, 2002(2) SLR 347 P&H. In order to find out whether any Government servant has outlived his utility and is to be compulsorily retired in public interest for maintaining an efficient istration, an objective view of overall performance of that Government servant has to be taken before deciding, after he has attained the age of 50 years, either to retain him further in service or to dispense with the services in public interest, by giving him three months” notice or pay in lieu thereof. State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(81) FLR 197: 1999(94) FJR 534. Adverse entry prior to promotion or putting of efficiency bar of picking up of higher rank is not wiped out and the same has to be taken into consideration otherwise it will not be a case of examining the entire record. Banshi Lal Nayati v. State of Rajasthan, 1999(3) SLR 187 Raj. 21. Absence of Words “Public Interest” in Order — (i) The mere absence of the use of the words “public interest” in the order or the refusal to repeat the very language of the statutory provision would not per se involve the taint of invalidity. Krishan Dev Kapoor v. General Manager, Northern Railway, 1974 SLJ 633; 1973 (2) SLR 149; Mayengham Raja Mohan Singh v. Chief Commissioner, Manipur, AIR 1976 SC 2581: 1976(4) SCC 709: 1977 (1) SLR 234: 1977 SLJ 65: 1976 Lab IC 1713.

202


[R . 11

(ii) The concept of “public interest” was introduced by sub-rule (j) of Rule 56 of the Fundamental (Sixth Amendment) Rules, 1965. The appellant”s service having been validly determined by a notice which was issued prior to the date when the amended rules came into force it was not necessary for the authority to satisfy itself that it was in “public interest” to retire the appellant compulsorily. B. Venkataswara Rao Naidu v. Union of India, 1973 SLJ 314: 1973 (1) SLR 676 (SC). 22. Compulsory Retirement Under F.R. 56 (j): No opportunity to show cause required — (i) Fundamental Rules 56 (j) does not require that any opportunity should be given to the Government servant to show cause against his compulsory retirement. Union of India v. Col. J.N. Sinha, (1970) II SCWR 393: 1970 SLR 748: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458; Col. J.N. Sinha v. Union of India, 1970 SLR 213 (Delhi) Reversed; P.P. Yajurvedi v. C.L. Handa, AIR 1970 Delhi 211 which followed 1970 SLR 213 (Delhi) no longer good law. Also see R.I.N. Ahooja v. Union of India, 1973 (1) SLR 15. (ii) Where compulsory retirement is in accordance with a rule which fixes reasonable age-limit for such retirement and provides for payment of retirement pension without loss of benefits already earned no notice to show cause as contemplated under Article 311 (2) of Constitution is required. M.S. Bheemasenachar v. State of Mysore, 1971 Lab IC 122. 23. Compulsory Retirement under F.R. 56(j), does not Involve Civil Consequences — What is “public interest” was explained in the decision of Supreme Court in Union of India v. Col. J.N. Sinha, AIR 1971 SC 40: 1971(1) SCR 791: 1970 SLR 748 (SC): 1970(2) SCC 458: (1970) II SCWR 393. It was pointed out that the object of premature retirement of a Government servant was to weed out the inefficient, corrupt, dishonest employees from the Government service. The public interest in relation to public istration means that only honest and efficient persons are to be retained in service while the services of the dishonest or the corrupt or who are almost dead wood, are to be dispensed with. The court observed: “Compulsory retirement involves no civil consequences. The aforementioned Rule 56(j) is not intended for taking any penal action against the Government servants. That Rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the Rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not insufficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in Government organisations, there is a good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual Government servant and the interest of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who

R . 11]

203


in its opinion should not be there in pubic interest. ……It is true that a compulsorily retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but then as the Rule provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Three months” notice is provided so as to enable him to find out other suitable employment. ……In our opinion, the High Court erred in thinking that the compulsory retirement involves civil consequences.” State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1) SCC 529: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR 197: 1999(94) FJR 534: 1999(6) SLR 324; See also H.C. Gargi v. State of Haryana, 1986(4) SCC 158: AIR 1987 SC 65: 1986(3) SLR 57 (SC); Gian Singh Man v. High Court of Punjab & Haryana, 1980(4) SCC 266: AIR 1980 SC 1894; Kailash Chandra Agarwal v. State of M.P., 1987(3) SCC 513: 1987(4) ATC 209: AIR 1987 SC 1871: 1987(5) 171 (SC); Union of India v. M.E. Reddy, 1980(2) SCC 15: AIR 1980 SC 563: 1979(2) SLR 792 (SC); Baikuntha Nath Das v. Chief Distt. Medical Officer, 1992(2) SCC 299: 1992(21) ATC 649: 1992(2) SLR 2 (SC); Posts & Telegraphs Board v. C.S.N. Murthy, 1992(2) SCC 317: 1992(21) ATC 663: 1992(2) SLR 352 (SC); E.V. Naidu v. Union of India, AIR 1973 SC 698: 1973(3) SCR 216: 1973(1) SCC 361: 1973(1) SLR 676: (1971) 1 SCJ 655. 24. Fundamental Rule 56(j), Absolute Right of Authority to Retire — F.R.56(j) says that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. This power can be exercised subject to the conditions mentioned in the rule. Union of India v. Col. J.N. Sinha, (1970) II SCWR 393: (1971) 1 SCJ 655: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458: 1970 SLR 748; R.L. Butail v. Union of India, (1970) II SCWR 561: 1970(2) SCC 876; Mayengbam Radha Mohan Singh v. Chief Commissioner, Manipur, AIR 1976 SC 2581: 1977(1) SCR 1022: 1976(4) SCC 709: 1977 (1) SLR 234: 1977 SLJ 65. The order to retire must be ed only by the “appropriate authority”. That authority must form the requisite opinion not subjective satisfaction but objective and bona fide based on relevant material. The requisite opinion is that the retirement of the victim is in public interest – not personal, political or other interest but solely governed by the interest of public service. The right to retire is not absolute, though so worded. Absolute power is anathema under our constitutional order. “Absolute” merely means wide, not more. Naked and arbitrary exercise of power is bad in law. Baldeo Raj Chadha v. Union of India, 1980 (3) SLR 1: 1980 Lab IC 1184: AIR 1981 SC 70: 1981(1) SCR 430: 1980(4) SCC 321: 1981 (1) SLJ 188; Union of India v. K.R.Tahiliani, 1980(2) SCR 1092: AIR 1980 SC 953: 1980(3) SCC 309: 1980 Lab IC 594: 1980(1) SLR 847: 1980 SCC (Lab) 374: ILR (1980) HP 164; R. Krishnaswamy v. Union of India, 1982 (2) SLR 17. 25. Compulsory Retirement Attracted— F.R. 7 provides:—

under

F.R.

56(j),

F.R.

7

is

not

“No powers may be exercised or delegated under these rules except after consultation with the Ministry of Finance. It shall be open to that Ministry to

204


[R . 11

prescribe, by general or special order, cases in which its consent may be presumed to have been given.” F.R.7 has no application in the course of a compulsory retirement under F.R.56(j). S.S. Marwah v. Union of India, 1982 Lab IC 372. 26. Fundamental Rule 56(j) : Validity of — The validity of Fundamental Rule 56(j) is not open to question. T.C.Shivacharana Singh v. State of Mysore, AIR 1965 SC 280: 1967(2) LLJ 246: 1967(15) FLR 223; Union of India v. Col. J.N. Sinha, (1970) II SCWR 393: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458; R.L. Butail v. Union of India, (1971) 2 SCR 55: 1970(2) SCC 876: 1970 SLR 926. The concept of the premature retirement which has found expression in the Punjab Civil Services (Premature Retirement) Rules, 1965 does not fall within the scope of Art. 311. Gian Singh Mann v. High Court of Punjab, 1980 (3) SLR 18 (SC): AIR 1980 SC 1894: 1981(1) SCR 507: 1980(4) SCC 266: 1980 Lab IC 983: 1981 (1) SLJ 121. 27. Fundamental Rule 56(j)(i) : Application of — Rule 56(j)(i) is meant to cover only those who are in a post on a regular basis, i.e. in a substantive capacity, and not on an officiating basis only. K.R. Tahiliani v Union of India, 1978 (1) SLR 815 (Delhi) on appeal. Union of India v. K.R. Tahiliani; 1980(2) SCR 1092: 1980(3) SCC 309: AIR 1980 SC 953: 1980 Lab IC 594: 1980(1) SLR 847: 1980 SCC (Lab) 374: ILR (1980) HP 164; C.K. Jain v. State of Haryana, 1981 (1) SLR 551. Sub-clause (i) is applicable only if the employee is in Class I or Class II service and had entered Government service before attaining the age of 35 years. T.C. Sanghi v. Union of India, 1982 (1) SLJ 21. 28. Compulsory Retirement under F.R. 56(j) — Analysis of Case Law — (i) The rule is not intended for taking any penal action: (ii) It involves no civil consequences. (iii) It does not cast any stigma. (iv) It does not involve any penal action. (v) The rule confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 50 years in case of officers of Group A and Group B and 55 years in any other case if such authority is of the opinion that it is in public interest to do so. (vi) The presumption is that order has been ed in public interest. (vii) The decision is istrative. (viii) Courts cannot sit as a court of appeal on facts over the decision of Government or the appointing authority unless the decision is capricious or arbitrary or based on collateral grounds or is made on extraneous considerations. See Union of India v Col. J.N.Sinha, (1974) II SCWR 393: 1970 SLR 748: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458: R.L. Butail v. Union of India, (1970) II SCWR 561: (1970) 2 SCC 876: 1970 SLR 926; State of U.P. v. S. M. Banerji, 1974 ALJ 238: 1974 (2) SLR

R . 11]


205

499; Shikar Chand Jain v. State of U.P., 1974 SLJ 106; Gian Singh Mann v. High Court of Punjab, AIR 1980 SC 1894: 1981(1) SCR 507: 1980(4) SCC 266: 1980 (3) SLR 18; Baldeo Raj Chadha v. Union of India, (1980) 3 SLR 1: (1981) 1 SLJ 188 (SC); Baikunthanath Das v. Chief District Medical Officer, (1982) 1 SLJ 648 (Orissa): 1981 (3) SLR 459. 29. Intention of Holding Enquiry, then Deciding to Retire — (i) Appointing authority at first deciding to proceed by way of disciplinary action against a public servant but subsequently deciding to compulsorily retire him in accordance with the rules. There is no legal bar in doing so. Basistha Narain v. Commissioner of Income Tax, AIR 1968 Patna 113; Jagdish Mittar v. Union of India, AIR 1964 SC 449: 1964(1) LLJ 418. An order of compulsory retirement ed during the pendency of disciplinary proceedings cannot invariably be held to be penal in every case. It is a matter which has to be decided on the basis of the material on which such order is ed. State of Uttar Pradesh v. Abhai Kishore Masta, 1995(1) SCC 336: 1995(1) SCJ 199: 1995(1) SLR 16: 1995(29) ATC 116: 1995(2) SLJ 1: 1995 Lab IC 1401: 1995(70) FLR 789. In another case the High Court on its istrative side decided to keep disciplinary proceedings against the judicial officer pending for the purpose of imposing the cut on his retiral benefits. It was held that the conclusion is obvious that action of the High Court in retiring judicial officer was based on the allegation of misconduct, which was subject matter of the inquiry before a judge of the High Court and which appears to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991-92. Held that the impugned order of compulsorily retiring judicial officer though innocuously worded was in fact an order of his removal from service and cannot be sustained. High Court of Punjab and Haryana v. Ishwar Chand Jain, AIR 1999 SC 1677: 1999(4) SCC 579: 1999(2) SLR 531: 1999(2) KLT 34(SN): 1999 Lab IC 1823: 1999(3) LLN 28: 1999(3) SLJ 230. (ii) Dropping Enquiry in Progress and Ordering Compulsory Retirement— Even though the departmental enquiry has commenced, the Government has the power to drop the proceedings and order compulsory retirement. State of U.P. v. Man Bahal Lal Srivastava, 1975 (2) SLR 161: 1975 Lab IC 503. The factum of pendency of an enquiry or the continuance of the employee under suspension when the order of his retirement is ed, is not decisive of the question that needs to be determined. What is decisive is whether the order is by way of punishment. Merely because the petitioner was under suspension without anything more at the time the impugned notice of compulsory retirement was served on him, the same would not amount to an order of punishment. J.M. Sharma v. State of Haryana, 1981 (1) SLR 554. Departmental proceedings were started against the petitioner in 1959. Although the dismissal order was set aside in 1966, fresh proceedings were started against him. The decision to retire him compulsorily was taken as a short cut. Order quashed. O.P. Gupta v. Union of India, 1981 (3) SLR 778.

206


[R . 11

(iii) Charges Dropped : Compulsory Retirement not Based on Any Material, Bad — Petitioner was subjected to certain charges but they were dropped after a thorough investigation. However, there is one adverse entry about his efficiency. Held, conclusion of compulsory retirement not based on any material. A Sruvli Babu v. State of Tamil Nadu, 1979 SLJ 527: 1979 (2) SLR 282. (iv) Charges Dropped — Promoted — Shortly Thereafter Compulsorily Retired — Order Quashed — The appellant started at the lowest rung as a Lower Division Clerk and getting one promotion after the other was posted as Member of the Sales Tax Appellate Tribunal when he was prematurely retired in September 1975. An adverse entry had been made against him in 1969. He was served with a charge sheet but the charges were dropped in 1974. In May 1975 he was promoted and posted as Member of the Tribunal but prematurely retired in September 1975. Nothing even mildly suggestive of ineptitude or inefficiency after promotion. Order of retirement quashed. D.Ramaswami v. State of T.N., AIR 1982 SC 793: 1982(3) SCR 75: 1982(1) SCC 510: 1982(1) SLJ 194: 1982(1) SLR 690: 1982 Lab IC 443. 30. Compulsory retirement on of Involvement in criminal case — The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. However mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee. State of Gujarat v. Suryakant Chunilal Shah, 1999(1) SCC 529: 1998(5) SLR 746: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(1) LLN 52: 1999(81) FLR 197: 1999(94) FJR 534 31. Superannuation According to New Rules, No Penalty — On the age of superannuation being reduced from 58 years to 55 years; if the services are terminated or compulsory retirement is made, it cannot be said a removal or a penalty so as to attract Article 311. Ramavtar Pandey v. State of U.P., AIR 1962 All 318; Bishan Narain Misra v. State of U.P., AIR 1965 SC 1567: 1965(1) SCR 693: 1966(1) LLJ 45: (1965) 1 SCWR 693. See also, C. Sankara Narayanan v. State of Kerala, (1971) II SCWR 50: AIR 1971 SC 1997: 1971 Supp SCR 654: 1971(2) SCC 361: 1971 Lab IC 1178. 32. Competency of Authority to Retire — If no rule authorised the Government to compulsorily retire an employee before the date of superannuation and before he had put in 25 years of service, the order violates Article 311. Mohammed Mominuddin v. Government of A.P., (1968) II SCWR 773; Moti Ram Deka v. G.M., N.E.F. Rly., (1964) 5 SCR 683: AIR 1964 SC 600: 1964(5) SCR 683: 1964(2) LLJ 467; Somnath Misra v. Union of India, AIR 1969 Orissa 37. The order of compulsory retirement is to be ed only by the appropriate authority after forming requisite opinion not subjective satisfaction, but objective and bona fide and based on relevant material. The requisite opinion is to be in public interest not personal, political or other collateral consideration but solely in public interest. The bona fide opinion cannot be challenged before courts. If an order of

R . 11]


207

compulsory retirement is ed without application of mind and without forming the requisite opinion, such an order can be annulled by the Court. Baikunthanath Das v. Chief District Medical Officer, Baripada, 1982 (1) SLJ 648 (Orissa): 1981 (3) SLR 459; Bhola Ram v. Lt. Governor, Delhi, 1983 Lab IC 57. 33. Minimum period of service — If a rule provides for compulsory retirement at any time, without providing for a minimum period of service after which only compulsory retirement can be ordered, that rule itself must be held to be void for contravention of Article 311(2) of the Constitution, because such compulsory retirement, in the case of a permanent government servant, amounts to removal; that the rule under which the order has been made is unconstitutional and invalid (i) when the rule does not fix any age of superannuation but enable the government to retire a government servant at any time, without payment of full pension, and (ii) when the age of superannuation has not been reasonably fixed and is unnecessarily short. Durgadas Purkyastha v. Union of India, AIR 2002 SC 2639: 2002(6) SCC 252: 2002(5) JT 210: 2002(5) SLR 229 (SC): 2002 AIRSCW 2966: 2002(48) AllLR 493: 2002 SCC (L&S) 859. 34. Compulsory Retirement Before Age of Superannuation — (i) Rules for — Government can compulsorily retire an employee even before he has attained the age of superannuation. Pritam Singh Brar v. State of Punjab, AIR 1968 Punjab 189(FB); Kartar Singh v. Punjab State, 1982 (1) SLR 307. Fundamental Rules 56(j)(i) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis. Union of India v. K.R.Tahiliani, 1980(2) SCR 1092: 1980(3) SCC 309: AIR 1980 SC 953: 1980 Lab IC 594: 1980(1) SLR 847: 1980 SCC (Lab) 374: ILR (1980) HP 164 : 1980 (1) SLR 847 (ii) On Completing Reasonably Long Period of Qualifying Service — If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered, that may not amount to dismissal or removal. Such a rule is valid. Satish Chand Anand v. Union of India, AIR 1953 SC 250; T.C. Shivacharana Singh v. State of Mysore, AIR 1965 SC 280: 1967(2) LLJ 246: 1967(15) FLR 224; Takhatary Shivdatrai v. State of Gujarat, 1969 (2) SCC 120. See also, Vithalrao Ramachandra Ghorpade v. State of Maharashtra, 1973 (1) SLR 255; Union of India v. M.E.Reddy, 1980(1) SCR 736: 1980(2) SCC 15: AIR 1980 SC 563: 1980 Lab IC 221: 1979(2) SLR 792: 1980 SCC (Lab) 179. (iii) On Completing Unreasonably Short Period of Service — (a) A rule conferring an absolute right to retire a Government servant after he had completed ten years of qualifying service though providing that such power shall not be exercised except when it is in public interest, was struck down as contravening Art. 311(2). Gurdev Singh Sidhu v. Punjab State, (1964) 7 SCR 587: AIR 1964 SC 1585: 1964 Crl LJ 481; R.L. Butail v. Union of India (1970) II SCWR 561: 1970 SLR 926. (b) A rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Art. 311. Butahari Jena v. State of Orissa, (1971) 1 SCWR 643: AIR 1971 SC 1516: 1971 Supp SCR 352: 1971(2) SCC 232: 1971 Lab IC 948.

208


[R . 11

(iv) For Being Unfit — Where the authority chooses to exercise its powers to compulsorily retire the Government servant by an order in which it brands him “unfit” to be retained in service on of his being dishonest, inefficient, or of doubtful integrity, as a punitive measure, Art. 311(2) of the Constitution will be attracted with full force and the order of retirement will, in substance, be construed as an order of “dismissal” or “removal” from service. S. Mangal Singh v. Punjab State, 1968 Cur LJ 13. (v) For istrative Reasons — Order for retirement on istrative reasons does not amount to dismissal or removal from service within the meaning of Art. 311(2) of the Constitution. Dalip Singh v. State of Punjab, (1961) 1 SCR 88: AIR 1960 SC 1305: 1961(2) SCJ 58. (vi) For Physical Incapacity — In the absence of a service rule, the compulsory retirement of a Government servant on the ground of physical incapacity is a punishment as it visits him with penal consequences in that it entails in a premature end to his employment. Motiram v. N.E.Frontier Railway, AIR 1964 SC 600: 1964(5) SCR 683: 1964(2) LLJ 467; Gurdev Singh Sidhu v. State of Punjab, AIR 1964 SC 1585; T.S. Mankad v. State of Gujarat, AIR 1970 SC 143: 1970(1) SCR 244: 1969(2) SCC 120: 1969 SLR 572; S.P. Shrivastava v. State of M.P., 1970 SLR 700: AIR 1971 MP 20. Petitioner was unable to perform the duties properly because of his bad eye sight. As such it cannot be said that the action of the respondents was, in any way, mala fide. T.C. Sanghi v. Union of India, 1982(1) SLJ 21. (vii) For Unsatisfactory Record of Service — (a) Retirement ordered on the ground that the record of service was found to be unsatisfactory. No enquiry made as contemplated by Art. 311(2). Order attaches stigma and is ultra vires. Jagdish Mitter v. Union of India, AIR 1964 SC 449: 1964(1) LLJ 418; Balbir Singh v. State of Punjab, AIR 1970 Punjab 459; Baldev Raj Chadha v. Union of India, AIR 1981 SC 70: 1981(1) SCR 430: 1980(4) SCC 321: 1981 (1) SLJ 188: 1980 Lab IC 1184: 1980 (3) SLR 1. Whatever value the confidential reports of earlier years may possess, those pertaining to later years are not only of direct relevance but also of utmost importance. The uncommunicated adverse entries are not to be considered while taking decision. Gurdial Singh Fijji v. State of Punjab, AIR 1979 SC 1622: 1979(3) SCR 518: 1979(2) SCC 368: 1979 Lab IC 1186: 1979 (1) SLR 804; Union of India v. M.E. Reddy, AIR 1980 SC 563: 1980(1) SCR 736: 1980(2) SCC 15: 1980 Lab IC 221: 1979(2) SLR 792; Brij Bihari Lal v. Hon”ble High Court of M.P., AIR 1981 SC 594: 1981(2) SCR 297: 1981(1) SCC 490: 1981 Lab IC 137: 1980 (3) SLR 583: (1981) 2 SCJ 90: 1981 (1) SLJ 412. (b) The service record of Government servant, his character roll entries etc. are relevant factors for deciding whether it is in public interest to retire a Government servant compulsorily. N.V. Putta v. State of Mysore, AIR 1972 SC 2185: 1973(1) SCR 304: 1972(3) SCC 739: 1972 SLR 525: 1972 Lab IC 942; Shikar Chand Jain v. State of U.P., 1974 SLJ 106; M.L. Kalia v. Union of India, 1979 (3) SLR 334; Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49: 1979(2) SCR 202: 1979(2) SCC 491: 1978 Lab IC 1641: 1979 SLJ 1: 1979 (1) SLR 130; Brij Bihari Lal Aggarwal v. Hon”ble High Court of M.P., AIR 1981 SC 594: 1981(2) SCR 297: 1981(1) SCC 490: 1981 Lab IC 137: 1980 (3) SLR 583: (1981) 2 SCJ 90: 1981 (1) SLJ 412.

R . 11]


209

There were entries regarding inefficiency as a judicial officer, and touching his integrity. Right from the beginning of his career, the petitioner was trusted as an average officer and for several years it was observed that he had tendency to utilise the official power for personal gains and his general reputation was not even good. His integrity was also stated to be doubtful. It was held that the decision to retire the officer prematurely cannot be faulted. Bhikuri Charan Nanda v. State of Orissa, 1999(1) SLR 394 Ori (DB). (viii) Saying Employee Outlived his Utility — Compulsory retirement saying that the employee had outlived his utility. No enquiry held as contemplated by Art. 311(2), order attaches stigma and is ultra vires. State of U.P. v. Madan Mohan Nagar, AIR 1967 SC 1260: 1967(2) SCR 333: 1967 SLR 147: (1967) 1 SCWR 521. (ix) Without Asg Reason — There is no violation of Art. 311(2) if the Government asks any Government servant to retire in accordance with rules without asg any reason. Batahari Jena v. State of Orissa, AIR 1971 SC 1516: 1971 Supp SCR 352: 1971(2) SCC 232: 1971 Lab IC 948: (1971) I SCWR 643; State of Assam v. Premadhar Baruah, (1970) II SCWR 197: AIR 1970 SC 1314: 1971(1) SCR 503: 1970(2) SCC 211: 1970 Lab IC 1067: 1970 SLR 529: (1971) 2 SCJ 626; Tarlok Singh v. State of Punjab, (1974) 1 SLR 728: 1974 SLJ 438; Tara Singh v. State of Rajasthan, AIR 1975 SC 1487: 1975(3) SCR 1002: 1975(4) SCC 86: 1975 SLJ 619: 1975 (1) SLR 777: 1975 Lab IC 1046. 35. Compulsory Retirement with Stigma — (i) If a Government servant is compulsorily retired from service with stigma, it amounts to punishment. Jogendra Nath Trivedi v. State of Bihar, 1973 (1) SLR 1030; O.P. Kapoor v. State of Punjab, 1981 (1) SLR 577. (ii) Where the impugned order of compulsory retirement stated that the petitioner has accumulated a number of punishments and his general record of service has been unsatisfactory and he has ceased to be an efficient and useful member of the police force, held, these expressions definitely cast a stigma on the petitioner and the order in question would amount to a punishment and his removal from service so as to attract Art. 311 of the Constitution. P. Karuppiah v. Inspector General of Police, 1982 Lab IC 1258. (iii) When an order of compulsory retirement casts an aspersion or attaches a stigma to the officer it amounts to removal and such a case attracts the provisions of Art. 311(2) of Constitution. State of U.P. v. Madan Mohan Nagar, AIR 1967 SC 1260: 1967(2) SCR 333: 1967 SLR 147. See also I.N. Saksena v. State of M.P., AIR 1967 SC 1964: (1967)1 SCWR 665 : Allahabad Bank Officers Association v. Allahabad Bank, AIR 1996 SC 2030: 1996(4) SCC 504: 1996(5) JT 275: 1996(4) AD(Delhi) 455: 1996 SCC (L&S) 1037: 1996(2) Lab IC 1730: (1996) 4 SLR 22 (SC). 36. Compulsory Retirement : Order with or without Stigma — Where there are no express words in the order itself which would throw any stigma, the court cannot delve into secretariat files to discover whether some kind of stigma can be inferred on such research. I.N.Saksena v. State of M.P., AIR 1967 SC 1264: 1967(2) SCR 496: 1967 SLR 203: (1967) I SCWR 665; Balbir Singh v. State of Punjab, AIR 1970 Punjab

210


[R . 11

459; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462: 1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583: 1976 (2) SLR 859. The petitioner was a competent officer but was lacking in dealing with his subordinates. He was transferred in the exigencies of service. Petitioner took up leave and thereafter did not duties. The charges against him were that he did not report for duty at the new place of posting, overstayed leave without permission and that he deliberately disobeyed the order of transfer. He was compulsorily retired. Held, under the circumstances no stigma in the sense in which the word is ordinarily understood attached to the petitioner because the order of compulsory retirement was ed against him. Petition dismissed. T.D. Subramaniam v. Union of India, AIR 1982 SC 776: 1981(4) SCC 150: 1982 Lab IC 442: 1982 (2) SLJ 20: (1981) 1 SCJ 197. Where the charge against the delinquent (a Postal Assistant) was of wrong release of a Savings Bank in violation of the rules, compulsory retirement is too harsh. Stoppage of increments (3 years), would suffice. Ram Singh v. Union of India, (1988) 6 SLR 218 (CAT Chandigarh). 37. Compulsory Retirement : Application of Principle of Natural Justice — Compulsory retirement is not a punishment and does not involve the servant”s being deprived of any property. The principle of natural justice is that a person should not be punished or deprived of his property without being heard. It does not apply to compulsory retirement any more than to retirement on reaching the age of superannuation or discharge on completing the term of appointment. Abdur Ahmed v. Inspector General of Police, U.P., AIR 1965 All 142; Abdur Rahim Ahmed v. State of Mysore, AIR 1969 Mysore 248, M.S. Bheemasenachar v. State of Mysore, 1971 Lab IC 122; Vithalrao Ramchandra Ghorepade v. State of Maharashtra, 1973 (1) SLR 255. 38. Compulsory Retirement : Speaking Order not Required nor Opportunity of being Heard — When the rules fix both, an age of superannuation and an age of compulsory retirement and the services are terminated between these two points of time, the compulsory retirement does not amount to dismissal or removal. No punitive action is contemplated when the civil servant is relieved under the rule. When the services are so terminated no stigma is cast. Neither any opportunity to the civil servant of being heard is necessary nor order of premature retirement must be a speaking one giving reasons. R.I.N. Ahooja v. Union of India, 1973 (1) SLR 15; Sahadev Patnaik v. State of Orissa, 1974 (2) SLR 778. 39. Compulsory Retirement without giving Reasonable Opportunity to Show Cause — A Government servant who has to continue in service till he attained the age of 58 years, if he is retired earlier under F.R. 56 (j) without giving him a reasonable opportunity to show cause, there is no violation of the principles of natural justice. Punjab State v. Mohan Singh Mahli, AIR 1970 Punjab 419; State of Assam v. Premadhar Baruah, (1970) II SCWR 197: AIR 1970 SC 1314: 1971(1) SCR 503: 1970(2) 211: 1970 SLR 529; Union of India v. Col. J.N. Sinha, (1970) II SCWR 393: 1970 SLR 748: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458; B. Venkateshwra Rao Naidu v. Union of India, 1973 (1) SLR 676: 1973 SLJ 341.

R . 11]


211

40. Compulsory Retirement with Reduction of Pension — In an Allahabad case the decision to retire the petitioner compulsorily and to initiate action for reducing his pension were interlinked. Such a composite decision amounts to removal. No doubt employees retirement in itself may not carry stigma. But if it is coupled with reduction of pension it cannot be called a “ clean order of retirement”. Mahesh Chand Jindal v. State of U.P., (1983) 2 SLR 382, 383, 384 para 7 (DB) (All). 41. Compulsory Retirement and Past Record — Compulsory retirement based only on particular instance (of alleged disobedience of notice called upon the petitioner to duty) and without taking into the entire record of the petitioner (which had been consistently good) is illegal. Y.G. Raju v. Railway Board, (1983) 1 SLR 686: (1983) 1 SLJ 45 (AP) (Reviews Case Law). 42. Victimisation — (i) Compulsory retirement by way of victimisation of employee concerned is illegal. (ii) Power to retire in the public interest can be exercised only by appointing authority under Railways Establishment Code, Rule 2046 (b). Appointing authority must exercise its mind regarding the requirement of “public interest”. Orders of compulsory retirement ed on the direction of the Railway Board and senior authorities were held to be illegal. Y.G. Raju v. Railway Board, (1983) 1 SLR 686: (1983) 1 SLJ 45 (AP). 43. Compulsory Retirement on Integration of State — Appellant in Saurashtra Service was to retire on completing 55 years of age under Saurashtra Covenanting State Services Superannuation Age Rules. On States reorganisation Saurashtra integrated into State of Bombay. By applying Bombay Civil Service Rules he could be retired at the age of 50 years. Order retiring him at the age of 50 years set aside. Appellant to remain in service until he attained the age of 55 years. Takhatary Shivadatrai Mankad v. State of Gujarat, 1969 SLR 572: AIR 1970 SC 143: 1971(2) SCR 28: 1970(2) SCC 761: 1971 Lab IC 14: 1971(41) Comp Cas 14. Order to retire a Government Servant prematurely can be made only by the “appropriate authority”. Such authority cannot be an authority inferior to the authority which actually appointed the particular officer. Gafoor Mia Kansal v. Director, DMRL, (Hyderabad), (1988) 4 SLR 445, 466, 469, 470 (CAT Hyderabad) (FB) [The decision is on the identical provision in the Railways Servants (Discipline and Appeal) Rules, 1963 Rule 2(1) (a).] Delegation of the power of appointment; under Rule 9(1) proviso, C.C.S. Rules does not necessarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases. (following Godavari S.Parulikar v. State of Maharashtra, (1966) 3 SCR 314; Scientific Adviser to the Ministry of Defence v. S.Daniel, (1990) 2 SLR 724, 738, para 12 (SC): 1990(2) SCR 440: 1990 Supp SCC 374: 1990(2) JT 544: 1990(2) ATR 134: 1991(15) ATC 799: 1991(3) SLJ 29. 44. Compulsory retirement and integrity — Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of “integrity”. If this is missing, the whole bundle would disperse. A Government servant has, therefore, to keep his belt

212


[R . 11

tight. State of Gujarat v. Suryakant Chunilal Shah, 1999(6) SLR 324 (SC): 1999(1) SCC 529: 1998(8) JT 326: 1999(2) SLJ 28: 1999(1) LLJ 265: 1999(81) FLR 197: 1999(94) FJR 534. Integrity of a government employee is foremost consideration in public service. If a conduct of a government employee becomes unbecoming to the public interest or obstruct the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest. The government”s right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the government is entitled under Fundamental Rule 56 to take into the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to screening committee or the state government, as the case may be, to find out whether a government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the government is expected to form its opinion whether an employee is to be compulsorily retired or not. State of U.P. v. Vijay Kumar Jain, 2002(3) SCC 641: 2002(3) JT 76: 2002(3) SLR 363 (SC). Want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim “Nemo Firut Repente Turpissimus” (no one becomes dishonest all on a sudden) is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of istrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of “doubtful integrity” it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label “doubtful integrity”. Zunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881: 1999(7) SCC 409: 1999(5) JT 366: 1999(112) ELT 772: 1999(7) SLT 66: 1999(94) ECR 29: 2000(6) SLR 276 (SC). 45. Compulsory retirement and judicial review — In S.R. Venkataraman v. Union of India, 1979(2) SCC 491: 1979(1) SLR 130 (SC), Supreme Court held the order of compulsory retirement as a gross abuse of power as there was nothing on the record to justify and the order. In Baldev Raj Chadha v. Union of India, 1980(4) SCC 321: 1980(3) SLR 1 (SC), it was held that although the purpose of FR 56 was to weed out worthless employee without punitive extreme, if under the guise of “public interest”, an order of premature retirement is made for any other purpose, it would be the surest menace to public interest and the order must fail for unreasonableness, arbitrariness and “disguised dismissal”.

R . 11]


213

In M.S. Bindra v. Union of India, AIR 1998 SC 3058:1998(7) SCC 310: 1998(3) SLR 358 SC: 1998(78) ECR 502 and it was laid down “Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into.” It was further observed with reference to the facts of said case “While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion.” 46. Appropriate Authority to Order Compulsory Retirement — Under note 1 to F.R. 56, the authority entitled to make substantive appointment is the appropriate authority to retire Government servants under the said rules. No doubt, ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered. There, the specific provision in the Note to F.R. must hold good and Art. 311 is not violated either. Nor is there any discrimination because retirement is a category different from the punishment covered by Art. 311. The Note says that he who empowered to appoint on a given date is also the appropriate authority to retire compulsorily on that date. The petitioner was appointed in 1961 by Comptroller and Auditor General. By a notification in 1972 the A.G. had been clothed with the power to make substantive appointment of s Officers like the petitioner. Hence the retirement of the petitioner by A.G. cannot be nullified for want of competence as on the date order of retirement was ed, A.G. was appropriate authority to order retirement. Baldev Raj Chadha v. Union of India, 1980 (3) SLR 1: 1980 Lab IC 1184: 1981 (1) SLJ 188: AIR 1981 SC 70: 1981(1) SCR 430: 1980(4) SCC 321. Where the appointment was made by the Comptroller and Auditor General and the order of retirement was made by the Director of Commercial Audit, the order was held contrary to law. Dharam Dev Mehta v. Union of India, AIR 1980 SC 557: 1980(3) SCC 25: 1980 Lab IC 380: 1980 (1) SLR 414. On the recommendation of High Court the Governor/Government is to the ultimate order of compulsory retirement of Judicial Officer/Munsif. Gian Singh Mann v. High Court of Punjab, 1980 (3) SLR 18 (SC); 1981 (1) SLJ 121: AIR 1980 SC 1894: 1981(1) SCR 507: 1980(4) SCC 266: 1980 Lab IC 983; Rash Behari Rajguru v. State of Orissa, 1981 (3) SLR 78. 47. Appointing Authority cannot Delegate its Power to Issue Notice to a Subordinate — (i) The power to retire a civil servant on three Months notice rests with appointing authority which he cannot delegate to subordinate. Balbir Singh v. State of Punjab, AIR 1970 Punjab 459. (ii) Notice issued by subordinate with the approval and under the authority of appropriate authority was held valid by the Supreme Court in Krishna Kumar v. S.P. Saksena, 1973 (1) SLR 665: 1973 SLJ 862.

214


[R . 11

48. Compulsory Retirement by Three Month”s Notice or Salary in Lieu of Notice — Government can retire an employee on or after he attains the age of 55 years giving him three month”s notice or salary and allowances in lieu of three month”s notice. Punjab State v. Mohan Singh Mahli, AIR 1970 Punjab 419 (FB); Pritam Singh Brar v. State of Punjab, ILR (1967) 2 P&H 448(FB); Dev Dutt Gupta v. State of Haryana, 1973 (1) SLR 30; H.M. Abdul Salam v. State of Mysore, 1974 SLJ 267; Mohan Singh Mahli v. State of Punjab, 1976 Lab IC 782: 1976 (2) SLR 12 (SC); Kanhaiya Lal K. v. Union of India, 1982 (2) SLR 84 (a case under Railway Establishment Code). In S.N. Jog v. State of M.P., 1981 (2) SLR 352, in view of the provisions contained in the proviso to F.R.56(3) as applicable to M.P., it was held that there is no requirement of simultaneous payment or payment soon thereafter to validate the order of retirement which may operate forthwith. The proviso only say that the retirement may be forthwith and its result then is to entitle the Government servant to claim a sum equivalent to the amount of his pay plus allowances for the period of notice. A similar proviso was construed by the Supreme Court in Raj Kumar v. Union of India, AIR 1975 SC 1116: 1975(3) SCR 963: 1975(4) SCC 13: 1975 SLJ 615: 1975 (1) SLR 774: 1975 Lab IC 669, and it was held that it was not obligatory to pay the Government servant the salary for the notice period simultaneously but the Government servant was only entitled to claim the sum. In F.R. 56 applicable to Central Civil Services there is no such provision as in F.R. 56(3) as applicable to employees in M.P. or as Rule 5 of C.C.S. (Temporary Service) Rules, 1965. Three months pay and allowances in lieu of notice must therefore be paid simultaneously with the notice. 49. Notice pay or notice period — Validity of an order of compulsory retirement does not depend to prior full payment of three months” salary as a prerequisite. The only right of the government servant under such an order is to get the amount of three months” pay and allowance in lieu of such notice. State of Orissa v. Balakrushna Satpathy, 1995 Supp(4) SCC 511: 1995 SCC (L&S) 267: 1995(29) ATC 157; State of A.P. v. T.K. Seshadri, 2001(7) SLR 28 (SC). 50. Notice to Retire Before Age of 58 Years — A valid notice issued to a civil servant requiring him to retire on or after attaining the age of 55 years in accordance with the Civil Service Rules does not amount to punishment nor attracts the provisions of Article 311(2) or the Punishment and Appeal Rules. Notice cannot be held invalid merely because it required the civil servant to retire before attaining the age of 58 years. Tarlok Singh v. State of Punjab, 1974 (1) SLR 728: 1974 SLJ 438. 51. Notice, Date from Which Takes Effect and Period of — The notice must be in writing and it should be of not less than three months. Such a notice takes effect not from the date on which it is prepared by the Appointing Authority but from the date on which it is actually served upon the Government servant. A Notice for a shorter period would not be a notice in accordance with the provisions of the Rule. A notice for a shorter period cannot be extended retrospectively by a subsequent letter. M.S. Subramaniam v. B.S.D. Baliga, 1974(1) SLR 251; Also, see Poonam Chand Joshi v. Union of India, AIR 1971 Rajasthan 12.

R . 11]


215

52. Order of Compulsory Retirement is not one for Dismissal or Removal unless it Suffers from Any Vice — The implication and effect of orders of compulsory retirement came up for consideration before Supreme Court from time to time. From the decisions following propositions can be extracted:— First, in ascertaining whether the order of compulsory retirement is one of punishment, it has to be ascertained whether in the order of compulsory retirement, there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order for compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, an order for compulsory retirement on the completion of 35 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of further prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired. Where the authorities can make an order of compulsory retirement for any reason and no reason is mentioned in the order, it cannot be predicted that the order of compulsory retirement has an inherent stigma in the order. State of U.P. v. Shyam Lal Sharma, (1971) II SCWR 307: 1972 SLR 53: AIR 1971 SC 2151: 1972(1) SCR 184: 1971(2) SCC 514: 1971 Lab IC 1369. 53. Well Established Propositions — Decisions of Supreme Court on compulsory retirement establish following propositions:— (i) If the rules of compulsory retirement prescribe a normal age of superannuation and a reasonably long period of qualified service after which compulsory retirement can be ordered, the order would not amount to dismissal or removal under Art. 311(2) of the Constitution. (ii) The power of compulsory retirement may be used when the authority exercising the power cannot substantiate the misconduct which may be the real cause for taking action. In case of compulsory retirement, the imputation or charge is not, in , made a condition for the exercise of power. In case of compulsory retirement, misconduct or inefficiency furnish the background while in case of dismissal or removal they constitute the basis. Compulsory retirement has no stigma or implication of misbehaviour or incapacity. (iii) Compulsory retirement does not involve civil consequences. It does not take away any of the rights that have accrued to the Government servant from his past service. The order will not be one of punishment merely because there is the possibility of loss of further prospects, namely, that he will not get his pay till the age of superannuation or enhanced pension. The order would, however, amount to punishment if it involves loss of benefits already earned. (iv) There is no duty to hold an enquiry in case of compulsory retirement. If any enquiry is made, it is only for the satisfaction of the authorities who take action.

216


[R . 11

(v) Even if grounds of compulsory retirement containing certain charge or imputation are communicated to the concerned Government servant on his asking for the grounds, the order does not cast any stigma. (vi) If the order of compulsory retirement ex facie contains any express imputation of stigma, it amounts to removal and order is bad unless it has been reached after an enquiry under Art. 311(2). (vii) If there are no express words of stigma in the order itself, the court cannot go behind the order and look into the background and delve into official files to discover if some kind of stigma could be inferred. (viii) Judges cannot substitute their judgement for that of the but they are not absolved from minimal review to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest. (ix) The State should produce the service record. If the record is not produced, the Court is entitled to draw inference that the said record, if produced, would be unfavourable to the State. 54. Offer of Retirement : Revocation of — Law is now well settled that an officer is entitled to revoke his offer of retirement before its acceptance by the appropriate authority. Raj Kumar v. Union of India, AIR 1969 SC 180; Balmukund Oriya v. State of Orissa, AIR 1970 Orissa 130. In Anand Prakash v. State of Haryana, 1982 (2) SLR 368, reliance was placed on Jai Ram v. Union of India, AIR 1954 SC 584 and it was held that the Government servant has a right to withdraw his request for voluntary retirement before the date of his retirement. 55. Voluntary Retirement : Revocation — The appellant after serving for about 25 years on of certain domestic trouble did not want to continue in service after his attainment of 50 years of age. He therefore served a notice on the Government under F.R. 56. Governor allowed him to retire. He was allowed to go on one month”s leave preparatory to retirement w.e.f. 2nd July, on which date he relinquished his charge of office. Thereafter, Government ed order countermanding its earlier order allowing him to retire and asked him to immediately after the expiry of his leave. Order held null and void as F.R. 56 permitted appellant to retire voluntarily. Dinesh Chandra Sangma v. State of Assam, 1977 SLJ 662: 1978 (1) SLR 25: AIR 1978 SC 17: 1978(1) SCR 607: 1977(4) SCC 441: 1977 Lab IC 1852. 56. Punishment of Compulsory Retirement Based to a Considerable Extent on Material not Produced During Enquiry — Compulsory retirement bad, the respondent having been denied reasonable opportunities. State of A.P. v. S.N. Nizamuddin, AIR 1976 SC 1964: 1977(1) SCR 128: 1976(4) SCC 745: 1976 SLJ 553: 1976(2) SLR 532: 1976 Lab IC 1213. Comments and opinion of Central Vigilance Commission were taken into by the disciplinary authority which were not brought to the notice of the delinquent concerned. Impugned order is bad in law and inoperative. A.K. Roy Choudhury v. Union of India, 1982 (1) SLR 443 1982 (1) SLJ 186 (Guj).

R . 11]


217

57. Punishment of Compulsory Retirement for Possession of Disproportionate Assets — The petitioner, a gazetted officer, was punished as a result of departmental proceedings for being in possession of an amount of Rs.2,440/disproportionate to his income. The order was quashed as the Court held that no reasonable person could come to a conclusion that this amount could be said to be an amount which was disproportionate to the income of the person who was in petitioner”s position. Tej Ram Bery v. Union of India, 1973 (2) SLR 291: 1973 SLJ 738. See also A. Muthuswamy v. Divisional Personnel Officer, (1987) 1 SLR 541 (CAT) (Madras); S.C. Mehta v. Union of India, (1983) 3 SLR 714, (Delhi). For refusal of counting of previous service for grant of post retirement benefits see Union of India v. Dr. S. Baliar Singh, AIR 1998 SC 539: 1998(2) SCC 208: 1997(9) JT 287: 1998(1) SLR 103: (1998) 1 SCJ 348. 58. Wrong Reference to Power will not Vitiate Action if it can be Justified under Some Other Powers — The omission on the part of the officers competent to retire the petitioners in not scoring out the rules which are inapplicable to a particular individual does not render the order bad. The reason is that one of the rules is applicable to him and the omission to strike out the rules which are not applicable will not in any manner affect the applicability of the rule mentioned. P. Radhakrishna v. Government of A.P., AIR 1977 854: 1977 (1) SLR 258: 1977 SLJ 211. Merely on the ground that the order mentions the wrong provision and describes that petitioner has completed qualifying service of 25 years though infact, he has rendered 32 years of qualifying superior service the order is not invalid or ineffective. Gorakhnath Ram Swaroop Singh v. Government of M.P., 1980 (1) SLR 533. 59. Notes Below F.R. 56, Part of the Rule — Notes below the rule, virtually a part of the rule. Baldev Raj Chadha v. Union of India, AIR 1981 SC 70: 1979(4) SCC 803(3): 1981 (1) SLJ 188: 1980 (3) SLR 1. 60. Voluntary Retirement : Various Points — (i) Under Rule 56(d) Fundamental Rules, a Government servant has the option to retire after having attained 50 years of age or completing 25 years of qualifying service. Prior permission of the Government is not necessary, unless disciplinary proceedings are pending against him when he gives notice of voluntary retirement. A Sivaraman v. Tamil Nadu Water Supply and Drainage Board, (1984) 1 SLR 305, 306, Paras 6-7 (Madras). (ii) Notice for voluntary retirement [Fundamental Rules, Rule 56(k)] can be withdrawn unilaterally so long as the employee remains in service. It can be withdrawn before effective date when the Government servant exercised his right to retire voluntarily. There is no question of “acceptance” of the notice given by the employee. Union of India v. Harendra Lal, (1984) 1 SLR 1, 4, 6 Para 19 (Delhi) (DB). (iii) An application for voluntary retirement [Rule 48 and 48-A Central Civil Services (Pension) Rules, 1972] can be withdrawn before acceptance. A.N. Mohta v. Government of India, Text Book Press, (1986) 2 SLR 108 CAT, Chandigarh. (iv) An employee of the Karnataka State Government appealed in September 1978 for permission to retire voluntarily. There was no response and he died in June 1979. His widow claimed Rs.10,000 (payable to the widow) and gratuity etc. She was directed to get succession certificate which she did. But Government then ed an

218


[R . 11

order granting permission to retire from June 1978. Government refused to pay the benefits, saying that the employee did not die while in service. It was held that he must be deemed to have died in service. Widow”s claim was legal. Madhuramaa v. State of Karnataka, (1984) 3 SLR 496 (Kar). (v) An officer gave notice of voluntary retirement [U.P. Fundamental Rules, Rule 56]. After expiry of the notice period, he was convicted by a criminal court, but no disciplinary proceedings had been initiated before such expiry. It was held that the officer had already retired and disciplinary proceedings could not be taken thereafter. Harish Chandra Srivastava v. Dy.Commissioner, Ferozabad, (1985) 3 SLR 305 (All) (DB). (vi) On the date of making application for voluntary retirement, neither vigilance enquiry nor any disciplinary proceedings were pending or contemplated. It was only after the appellant handed over charge on 15.2.1996 and requested for release of retirement benefits on 15.2.1996, the show cause notice was issued. In these circumstances it was held that the show cause notice was of no consequence which appeared to have been issued only to defeat the claim voluntary retirement. Held further that the discretionary power of Management under the scheme, to accept or reject the request of voluntary retirement was not absolute. Manjushree Pathak v. Assam Industrial Development Corporation Ltd., AIR 2000 SC 2769: 2000(7) SCC 390: 2000(2) LLJ 1125: 2000(5) SLR 256: 2000(4) LLN 580: 2000(87) FLR 190: 2000(97) FJR 307 (vii) Denial of certain benefits to the employees opting for retirement in the second scheme while granting benefits to employees who sought voluntary retirement in the earlier scheme is discriminatory as it has no intelligible differentia except in treating both the group of employees differentially. Vice-Chairman and M.D., A.P.S.I.D.C. Ltd. v. Ch. R. Varaprasad, 1999(5) SLR 693 AP (DB).

MAJOR PENALTIES CLAUSES (viii) and (ix) Discharge SYNOPSIS 1.

Discharge, lesser punishment than dismissal ................................................................. 220

2.

Discharge without inquiry .............................................................................................. 220

3.

Discharge after summary enquiry whether fit to be retained in service ......................... 220

4.

Discharge at the end of tenure ........................................................................................ 220

5.

Discharge for being medically unfit .............................................................................. 220

6.

Discharge for having been found undesirable ............................................................... 220

7.

Discharge for misappropriation and tampering with official record .............................. 220

8.

Discharge for overstaying leave .................................................................................... 221

9.

Discharge of probationer ............................................................................................... 221

10. Discharge for misconduct or inefficiency:


R . 11]

(i) Misconduct as motive or foundation.................................................................. 222 (ii) Discharge for unfitness .................................................................................... 222 (iii) Discharge for unsatisfactory performance ...................................................... 222 (iv) Discharge for unsuitability ............................................................................. 223 (v) Discharge after initiating enquiry ..................................................................... 223 11. Discharge from service on abolition of post .................................................................. 223 12. Discharge on one month”s notice .................................................................................. 223 13. Discharge when there is no reduction of establishment ................................................. 224 14. Discharge by authority who had bias against the petitioner .......................................... 224 15. Discharge, Public Service Commission not consulted .................................................. 224 16. Discharge of temporary employee: show cause notice not necessary ........................... 224

Removal 17. Removal or dismissal, meaning of ................................................................................ 225 18. Dismissal or removal of a Government servant ............................................................ 225 19. Removal, dismissal or termination, motive of order ..................................................... 225 20. Removal for not reporting on duty after transfer ........................................................... 226 21. Removal for overstaying leave or absence .................................................................... 226 22. Removal or dismissal only after inquiry ........................................................................ 226 23. Order of removal or dismissal whether by way of punishment ..................................... 227 24. Removal should be independent decision of the disciplinary authority ......................... 227 25. Removal and judicial review .......................................................................................... 228 26. Reversion to substantive post, not removal ................................................................... 228

Dismissal 27. Dismissal, condition of service ..................................................................................... 228 28. Dismissal for conviction on a criminal charge .............................................................. 228 29. Dismissal or termination for misconduct ....................................................................... 228 30. Dismissal of police officer for misconduct .................................................................... 229 31. Dismissal with retrospective effect ............................................................................... 229 32. Dismissal order, when becomes effective ..................................................................... 230 33. Dismissal, discharge or removal for overstaying leave ................................................. 230 34. Dismissal for absence from duty ................................................................................... 230 35. Dismissal for assaulting co-employee ............................................................................ 232 36. Dismissal for gravest misconduct................................................................................... 232 37. Dismissal, power of ....................................................................................................... 232

219

220


[R . 11

Discharge 1. Discharge, Lesser Punishment Than Dismissal — “Discharge” has been accepted as a punishment lesser than “dismissal”. Brundaban Padhi v. State of Orissa, AIR 1970 Orissa 81; Govind Ram v. State of H.P., 1975 Lab IC 283. Order of “dismissal” corrected later as a “discharge”. Penalty does not involve stigma. Shashi Chaudhry v. State of J & K, 1969 SLR 236. 2. Discharge without inquiry — The employee was discharged from service on the ground that he was absenting himself from duty habitually. But no charge-sheet has been served and no explanation was called for and no opportunity was given and no enquiry has been conducted. The order of discharge set aside. Ram Niwas (Ex Const.) v. State of Haryana, 1999(1) SLR 463 P&H. 3. Discharge After Summary Enquiry Whether Fit to be Retained in Service — Summary enquiry held to ascertain whether temporary servant is fit to be confirmed or retained in service. Government ed order to discharge him. Article 311 (2) will not apply. State of Orissa v. Ram Narayan Dass, (1961) 1 SCJ 209: AIR 1961 SC 177: (1961) I SCR 606; State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701: 1968 Lab IC 1286: 1968 Cur LJ 687: (1969) 1 SCJ 51; Bishan Lal Gupta v. State of Haryana, (1978) 1 SCJ 215: AIR 1978 SC 363: 1978(2) SCR 513: 1978(1) SCC 202: 1978 (1) SLR 404: 1978 SLJ 220. 4. Discharge at the end of tenure — A temporary teacher in a leave vacancy cannot be considered as discharged nor claim the status as discharged employee. Discharge would connote for any other reason ejusdem generis due to abolition of the post or course of study or such similar circumstances except for discharge due to misconduct. Such a teacher only will be eligible to set up preferential claim for appointment but not a teacher who fortuitously came to be appointed in a leave vacancy much less for a limited period. State of Kerala v. Mother Anasthasia, Superior General, AIR 1997 SC 1310: 1997(1) SLR 705: 1997(10) SCC 79: 1997(2) LLN 618: 1997(76) FLR 1: 1997 Lab IC 1522. 5. Discharge for Being Medically Unfit — Appellant was declared medically unfit. Government ed order to discharge him from service. Order is not an order of dismissal or removal. Shrinivas Ganesh v. Union of India, AIR 1956 Bombay 455; Hartwell Prescott Singh v. U.P. Government, AIR 1957 SC 886: 1958 SCJ 148. 6. Discharge for having been Found Undesirable — Temporary civil servant served with the order “having been found undesirable to be retained in Government service is hereby served with a month”s notice of discharge.” No doubt the order purports to be one of discharge but it expressly casts a stigma and must be held to be an order of dismissal. Order violates Article 311 of the Constitution. Jagdish Mitter v. Union of India, AIR 1964 SC 449: 1964(1) LLJ 418. 7. Discharge for Misappropriation and Tampering with Official Record — The petitioner was discharged from service for misappropriating government money and tampering with official records. Held, the order casts aspersion and attaches stigma to the officer and amounts in substance to dismissal which could not be ed without

R . 11]


221

complying with the provisions of Article 311 (2) of Constitution. Kalipada Ghosh v. Sub-Divisional Officer, AIR 1969 Cal 164. 8. Discharge for Overstaying Leave — Overstaying leave without reasonable cause or absenting without leave will not result in automatic discharge from service. Reasonable opportunity must be given to show cause why he be not discharged.. Mafatlal Narain Dass Barot v. J.D. Rathod, (1967) 2 SCJ 64: (1967) 1 SCWR 30; Jai Shankar v. State of Rajasthan, AIR 1966 SC 492: 1966(1) SCR 825: (1966) 1 SCWR 92: (1966) 1 SCJ 731. 9. Discharge of probationer — The period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the Rules at which he is given a fair and reasonable opportunity of being heard. He may also come to lose the post on compulsory retirement. Life Insurance Corporation of India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25. The law in relation to termination of service of an employee on probation is well settled. If any order terminating the service of a probationer be an order of termination simpliciter without attaching any stigma to the employee and if the said order is not an order by way of punishment, there will be no question of the provisions of Article 311 being attracted. In each case it has therefore to be determined whether the impugned order is by way of punishment or not. Even if misconduct, negligence, inefficiency may be the motive or inducing factor which influenced the authority to terminate the services of probationer/temporary Government servant, such termination cannot be termed as penalty or punishment. Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCWR 88 If a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Art. 311 (2) of Constitution. Samsher Singh v. State of Punjab, 1974 (2) SLR 701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR 701; Union of India v. S.B. Chatterjee, 1980 (2) SLR 365. When employee was holding a temporary service and was on probation an order of termination simpliciter was ed against him. As the service records were found unsatisfactory, the termination order cannot be held arbitrary and capricious.

222


[R . 11

Tarakeswar Mahapatra v. Chairman, Haldia Development Authority, 1999(2) SLR 754 Cal (DB). 10. Discharge for Misconduct or Inefficiency: Generally an order of discharge can be ed either for some misconduct or for inefficiency. (i) Misconduct as motive or foundation — If misconduct is the foundation to the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated, in of the order of appointment or rules giving one month”s notice or pay salary in lieu thereof. Even if an enquiry was initiated, it could be dropped midway and action could be taken in of the rules or order of appointment. State of Uttar Pradesh v. Prem Lata Misra, AIR 1994 SC 2411: 1994 (4) SCC 189: 1994 (27) ATC 558: 1994 (2) SLR 708: 1994 (2) SLJ 167: 1994 (2) LLN 427: 1995 (1) LLJ 28. Once there is stigma, the principle is well settled, an opportunity has to be given before ing any order. Even where an order of discharge looks innocuous, but on close scrutiny, by looking behind the curtain, and if any material exist of misconduct and which is the foundation of ing of the order of discharge, or such could be reasonable inferred, then it leaves to no room of doubt that any consequential order, event of discharge would be construed as stigmatic. Then opportunity has to be given. Prithipal Singh v. State of Punjab, 2000(4) SLR 754 (SC): 2000(8) JT 26. When an allegation is made by the employee assailing the order of termination as one based on misconduct, though goes in innocuous , it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In such a case the Court may lift the veil and see whether the order was made on the ground of misconduct/inefficiency or not; but for that an allegation of serious magnitude must be alleged by the discharged employee and he must adduce sufficient evidence in of it. Hanwant School Management Committee, Jodhpur v. State of Rajasthan, 1999(1) SLR 713 Raj. Finding of habitual absence and indiscipline cast stigma on the career of the employee which would be impediment for future employment. Order of termination simplicitor held not sustainable. Major Singh v. State of Punjab, 2000 (9) SCC 473: 2000 (9) JT 571: 2000 (5) SLR 141(SC). (ii) Discharge for Unfitness — Fitness for the job is one of the most important reasons for confirmation. Termination of service for being unfit for appointment does not attach any stigma and the order was not an order ed by way of punishment. Hari Singh Mann v. State of Punjab, 1974 (2) SLR 696: AIR 1974 SC 2263: 1975(1) SCR 774: 1975(3) SCC 182: 1975 SLJ 14. (iii) Discharge for Unsatisfactory Performance — Art. 311 is not applicable to the discharge of the temporary Government servant even if his unsatisfactory performance furnishes the motive for such termination. Manik Manmath Karnade v. State of Maharashtra, 1980 SLJ 401: 1980 (1) SLR 144.

R . 11]


223

(iv) Discharge for Unsuitability — It is well settled that a probationer or temporary servant can be discharged if it is found that he is not suitable for the post which he is holding. This can be done without complying with the provisions of Art 311(2) unless the services are terminated by way of punishment. Ranjit Kumar v. State of West Bengal, AIR 1967 Cal 262; Dr. T.C.M. Pillai v. Indian Institute of Technology, Madras, 1971 (2) SCC 251: AIR 1971 SC 1811: 1971 Supp SCR 555: 1971 (2) SLR 679. Order was ed with a view to inflict punishment. As it was ed in violation of Art. 311(2), was quashed. Rama Pratap Singh v. State of U.P., 1982 Lab IC 1890. The authority may come to the conclusion that on of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence she must be discharged. It would not amount to punishment. Perpetua E. Rodrigues v. Goa Public Service Commission, Goa, 1999(3) SLR 667 Bom (DB). Where the driving of the staff car by the probationer was not satisfactory and that, therefore, they have terminated his services during probation. The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has power to terminate the services of the employee. Under these circumstances, it cannot but be held that the reasons mentioned constitute motive and not foundation for termination of service. K.V. Krishnamani v. Lalit Kala Academy, AIR 1996 SC 2444: 1996 Supp (2) SCR 844: 1996(5) SCC 89: 1996 SCC(L&S) 1132: 1996 Lab IC 2063: 1996(2) LLJ 661: 1996(74) FLR 1936: 1996(3) SLJ 29: 1996(4) SLR 504: 1996(2) LLN 495. (v) Discharge after initiating inquiry — Department instead of taking inquiry to logical conclusion ed an order of discharge of employee. It was held that the order was punitive in character and therefore, was not sustainable. Rajinder Kumar (ExConstable) v. State of Haryana, 2002(2) SLR 750 P&H (DB). 11. Discharge from Service on Abolition of Post — (i) Compliance with the requirements of Art 311(2) not necessary. Mohinder Singh v. Union of India, AIR 1969 Delhi 170: 1969 DLT 595; P.Bhupathi Reddy v. Govt. of A.P., AIR 1968 AP 307; M. Ramanatha Pillai v. State of Kerala, (1974) 1 SCWR 1: AIR 1973 SC 2641: 1974 (1) SCR 515: 1973 (2) SCC 650: 1974 (1) SLR 225. (ii) The termination of post in good faith and the consequent termination of the service of the incumbent of that post would not attract Art. 311. State of Haryana v. Des Raj, AIR 1977 SC 1199: 1976 SLJ 222: 1976 (1) SLR 191; K. Rajindran v. State of Tamil Nadu, AIR 1982 SC 1107: 1982 (3) SCR 628: 1982 (2) SCC 273: 1982 (1) SLJ 604: 1982 (2) SLR 196: 1982 Lab IC 876. 12. Discharge on One Month”s Notice — Appellant was a temporary Government servant and was not in quasi-permanent service. His services could be terminated on one month”s notice under Rule 12 of M.P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960. There was no provision in the order of appointment or in any agreement that his services could not be so terminated. Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158: 1970

224


[R . 11

(1) SCR 472: 1969 (2) SCC 240: (1970) 1 SCJ 257. Under of service. Somnath Sahu v. State of Orissa, 1981 (2) SLR 550 (SC.). When service conditions provided termination on one month notice and order of termination was served two days before the date from which termination was to be effected, it was held that the Order of termination was bad in law even employee was temporary. Prabhudayal Birari v. M.P. Rajya Nagrik Aapurti Nigam Ltd., AIR 2000 SC 3058: 2000 (5) SLR 124 (SC): 2002 (6) SCC 703: 2000 (2) LLJ 1105: 2000 (4) LLN 608: 2000 (87) FLR 4: 2000 (97) FJR 299. 13. Discharge When There is no Reduction of Establishment — The State has no power to terminate the services when the post itself was continuing. If action by way of disciplinary proceedings was taken, then the State should have complied with Art. 311 of Constitution. State of Haryana v. Rajendra Sareen, (1972) 2 SCJ 604: AIR 1972 SC 1004: 1972(2) SCR 452: 1972(1) SCC 267: 1972 SLR 112: 1972 Lab IC 546. 14. Discharge by Authority who had Bias Against the Petitioner — Petitioner had put in more than three years of service as Departmental Branch Post Master. She had made complaint against the Superintendent of Post Offices, alleging misbehaviour towards her. A person who has been charged with a conduct which would entail his dismissal from the office cannot be expected to have given fair and impartial consideration to the case of petitioner for appointment. Order set aside. A. Santha Kumari v. Regional Director of Postal Services, 1982 (2) SLJ 173. 15. Discharge, Public Service Commission not Consulted — Provisions of Art. 320(3)(c) are not mandatory and do not confer any rights on the public servant. State of U.P. v. M.L. Srivastava, 1958 SCJ 150: 1958 SCR 533: AIR 1957 SC 912; Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240. 16. Discharge of Temporary Employee: Show Cause Notice if Necessary — The State Government has the right to terminate the service of temporary civil servant without issuing any notice to him to show cause against the proposed action. Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158:1970(1) SCR 472: 1969(2) SCC 240: (1970) 1 SCJ 257. Once an employee attains the “temporary” status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by the Article 311 of the Constitution and other Articles dealing with services under the Union of India. Nar Singh Pal v. Union of India, AIR 2000 SC 1401: 2000(3) SCC 588: 2000(3) JT 593: 2000(1) LLJ 1388: 2000(96) FJR 502: 2000(2) SLR 592: 2000(3) SLJ 332: 2000 Lab IC 1377: 2000(2) LLN 407: 2000(85) FLR 458. A purely temporary government servant has no right to the post and her services were terminated in accordance with the and conditions of her appointment, which would not result in evil consequences. Perpetua E. Rodrigues v. Goa Public Service Commission, Goa, 1999(3) SLR 667 Bom (DB). An employee of the Directorate of Field Publicity, Andhra Pradesh, abstained from duty without leave on more than one occasion and was also guilty of

R . 11]


225

unsatisfactory behaviour. His services were terminated with one month”s notice. The order itself did not cast any stigma. Art. 311 of the Constitution was held to be inapplicable. Y.N. Reddy v. Director of Field Publicity, (1983) 2 SLR 431, 435 Para. 6, 7, 8 (AP). Removal 17. Removal or Dismissal, Meaning of — The words “dismissed” and “removed” mean nothing more or less than the termination of service and cover every termination of service. Removal and dismissal stand on the same footing except that dismissal disqualifies for future employment under the Government. Moti Ram Deka v. General Manager, N.E.F.Rly, AIR 1964 SC 600: 1964(5) SCR 683: 1964(2) LLJ 467; Shyam Lal v. State of U.P., AIR 1954 SC 369: 1955(1) SCR 26: 1954 SCJ 493; Khem Chand v. Union of India, 1958 SCJ 497: AIR 1958 SC 300: 1958 SCR 1080; Parshottam Lal Gupta v. State of Punjab, AIR 1967 Punj. 415; see also Workers employed in Hirakud Dam v. State of Orissa, AIR 1971 SC 2242: 1971(3) SCR 646: 1971(1) SCC 583: 1971(2) SLR 219: 1971 Lab IC 1381; (1972) 1 SCJ 694: Mohammad Abdul Salam Khan v. Sarfaraz Ahmed, AIR 1975 SC 1964: 1974 SLJ 352: 1975 (1) SLR 65; U.P. Government v. Sabir Hussain, AIR 1975 SC 2045: 1975 Supp SCR 354: 1975(4) SCC 703: 1975 SLJ 525: 1975 (2) SLR 267; Barda Kanta Misra v. High Court of Orissa, (1977) 1 SCJ 172: AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC 327: 1976(2) SLR 186: 1976 SLJ 529: 1976 Lab IC 1202. 18. Dismissal or Removal of a Government Servant — Art. 311(2) of the Constitution lays down that no person who holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Art. 311 makes no distinction between permanent and temporary posts and extends its protection equally to all Government servants holding permanent or temporary posts or officiating in any of them. The protection of Art. 311 is available only where dismissal, removal or reduction is sought to be inflicted by way of punishment and not otherwise. Parshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36. The principles formulated in this case have furnished the principal guidelines in all future cases relating to dismissal, removal or reduction in rank of Government servants. 19. Removal, Dismissal or Termination, Motive of Order — The Court has to see the truth and substance of the matter and has to determine whether an order though couched as a simple order of termination really amounts to removal, dismissal or termination from service. State of Punjab v. Sukh Raj Bahadur, (1969) 1 SCJ 51: AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701; Swami Saran Saxena v. State of U.P., 1969 SLR 787; Dinkar Keshav Bedekar v. State of Maharashtra, 1970 Lab IC 139; State of Bihar v. Shiv Bhikshuk Mishra, 1970 SLR 863: (1970) II SCWR 606: (1971) 2 SCJ 68; Sharat Chand Mishra v. State of U.P., 1972 SLR 184; K.K. Mittal v. Union of India, 1974 (2) SLR 602. Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment when there are no express words in the impugned order itself which throw a stigma on the Government

226


[R . 11

servant. Oil and Natural Gas Commission v. Dr Md. S.Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2) SLR 792; Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88; State of Uttar Pradesh v. Prem Lata Misra, AIR 1994 SC 2411: 1994 (4) SCC 189: 1994 (27) ATC 558: 1994 (2) SLR 708: 1994 (2) SLJ 167: 1994 (2) LLN 427: 1995 (1) LLJ 28; Kunwar Arun Kumar v. Uttar Pradesh Electronics Corporation Ltd., 1996 Supp (8) SCR 19: 1997(2) SCC 191: 1997(1) LLN 570: 1997(1) SLR 136: 1997(1) SLJ 234: 1997(91) FJR 55: 1997(3) LLJ 791. 20. Removal for not Reporting on Duty After Transfer — On plaintiff”s not reporting on duty after transfer an order was ed that he had lost his lien on post. Held, the order amounted to removal and could not be ed except in adherence to the provisions of Art. 311 of the Constitution. State of Mysore v. Anthony Benedict, 1969 SLR 21. 21. Removal for Overstaying Leave or Absence — The removal of a Government servant from service for overstaying his leave or for absenting himself without leave is illegal even though it is provided by the service regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of competent authority. This cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. Jai Shankar v. State of Rajasthan, (1966) 1 SCJ 731: AIR 1966 SC 492: 1966(1) SCR 825; Mafatlal Narandas Barot v. J.D. Rathod, (1961) 1 SCWR 30: AIR 1966 SC 1364: 1966(3) SCR 40: (1967) 2 SCJ 64; B.M. Tripathi v. State of U.P., AIR 1971 All. 346: 1971 (2) SLR 738; Sobhana Das Gupta v. State of Bihar, AIR 1973 Patna 431: 1974 (2) SLR 674; State of Assam v. Akshaya Kumar Deb, AIR 1976 SC 37: 1975(4) SCC 339: 1975(2) SLR 430: 1975 Lab IC 1753: 1975 SLJ 592: (1976) 2 SCJ 246; M.M. Joseph v. Union of India, 1979 (3) SLR 434; State of Rajasthan v. Mangal Singh, 1981 (1) SLJ 173. 22. Removal or Dismissal Only After Inquiry — The words “dismissed” and “removed” are technical words. Both in the case of removal or dismissal there is a stigma. It also involves loss of benefit. No person mentioned in Art. 311(1) shall be dismissed or removed except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. M. Ramanatha Pillai v. State of Kerala, AIR 1973 SC 2641: 1974(1) SCR 515: 1973(2) SCC 650: 1974 (1) SLR 225: (1974) 1 SCWR 1; Harish Chandra v. Dy. Director of Education, AIR 1965 Raj 108; Mohd. Ibrahim v. State, 1970 SLR 129. The penalty of removal from service cannot be imposed without recourse to disciplinary proceedings. Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999 (1) SCC 741: 1999 (1) CLT 134 (SC): 1999 (2) SLR 576: 1999 (1) LLJ 633: 1999 (1) LLN 1081: 1999 (3) SLJ 124 . If the termination is punitive in nature and is brought about on the ground of misconduct. Article 311(2) would be attracted and in that situation it would be incumbent upon the employer, in the case of Government service, to hold a regular departmental enquiry. In any other case also, specially those relating to statutory

R . 11]


227

corporations or Government instrumentalities, a termination which is punitive in nature cannot be brought about unless an opportunity of hearing is given to the person whose services, even during the period of probation, or extended period, are sought to be terminated. Life Insurance Corporation of India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25. Removal from service without holding any inquiry and without affording an opportunity to delinquent to defend himself. Neither any charge sheet served nor show cause notice given. Held that principles of natural justice and fair play not having been followed the order of dismissal held to be without jurisdiction and contrary to the relevant provisions. Ram Sahan Rai v. Sachiv Samanaya Prabandhak, AIR 2001 SC 1173: 2001(3) SCC 323: 2001(3) JT 95: 2001(1) LLJ 1073 But removal from service (an engine driver) after affording full opportunity at the enquiry, and also after giving a “show cause” notice against proposed punishment is legal, and cannot be questioned. Deo Narayan v. Union of India, (1983) 1 SLR 133134, Para 8 (Pat). 23. Order of Removal or Dismissal Whether by Way of Punishment — There can be no hard and fast rule, nor any abstract proposition of law for the purpose of determining as to whether the impugned order is simpliciter or by way of punishment. It would depend upon the facts and circumstances of each case as to whether it can be deduced that the order is by way of penalty or not. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR 701: 1974 Lab IC 1380; Subhash Chandra Chaudhary, Jamuna Ram v. Bihar State Warehousing Corporation, 1980 (2) SLR 760. The High Court on its istrative side decided to keep disciplinary proceedings against the judicial officer pending for the purpose of imposing the cut on his retiral benefits. It was held that the conclusion is obvious that action of the High Court in retiring judicial officer was based on the allegation of misconduct, which was subject matter of the inquiry before a judge of the High Court and which appears to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991-92. Held that the impugned order of compulsorily retiring judicial officer though innocuously worded was in fact an order of his removal from service and cannot be sustained. High Court of Punjab and Haryana v. Ishwar Chand Jain, AIR 1999 SC 1677: 1999 (4) SCC 579: 1999 (2) SLR 531: 1999 (2) KLT 34 (SN): 1999 Lab IC 1823: 1999 (3) LLN 28: 1999 (3) SLJ 230. 24. Removal should be independent decision of the disciplinary authority — Recommendations of the Chief Vigilance Officer though not binding on the disciplinary authority but disciplinary authority ed the order of removal from service at the time when the directive of the vigilance officer was operative. Held that it can be presumed that the disciplinary authority was acting in accordance with the said directive and imposed punishment in accordance with the recommendation made by the Chief Vigilance Officer. The order was set aside and the matter was remitted back to the disciplinary authority for reconsideration. Satyendra Chandra Jain v. Punjab National Bank, 1997 (11) SCC 444.

228


[R . 11

25. Removal and judicial review — The court is not a court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a Government servant based upon the proved misconduct against the Government servant. Its proportionality also cannot be gone into by the Court. The only question is: whether the disciplinary authority would have ed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the Court would be loath to interfere with that part of the order. The order of removal does not cast stigma on the employee to disable him to seek any appointment elsewhere. Therefore interference with such order, under the circumstances, held to be not permissible. State of Uttar Pradesh v. Nand Kishore Shukla, AIR 1996 SC 1561: 1996 (3) SCC 750: 1996 (2) SLR 504: 1996 SCC (L&S) 867: 1996 (2) LLJ 672: 1996 (2) LLN 241; Government of Tamil Nadu v. A. Rajapandian, AIR 1995 SC 561: 1995 (1) SCC 216: 1995(29) ATC 89: 1994(5) SLR 745: 1995(2) SLJ 216: 1995(1) LLJ 953: 1996(2) LLN 459. 26. Reversion to Substantive Post, Not Removal — (i) Reversion to substantive post is not removal from service. Fateh Singh Chugh v. State of Punjab, AIR 1970 Punj 315. (ii) Where an order of reversion of a person who had no right to the post, does not show ex-facie that he was being reverted as a measure of punishment or does not cast any stigma on him, the courts will not normally go behind that order to see if there were any motivating factors behind that order. S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 (2) SLR 740: 1976 SLJ 271. (iii) Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influenced the authority to the order of reversion, the said order cannot be said to be by way of punishment. Union of India v. P.S. Bhatt; 1981 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88; Union of India v. S.S.Chatterjee, 1980 (2) SLR 365. See also G. Venugopal v. Director of Appellate Authority, 1993 (4) SLR 81 (CAT Hyderabad). Dismissal 27. Dismissal, Condition of Service — Dismissal of an official is a matter which falls within “conditions of service” of public servants. State of M.P. v. Shardul Singh, (1970) 2 SCJ 442: (1970) 1 SCWR 65: 1970 SLR 101. 28. Dismissal for Conviction on a Criminal Charge — See Commentary under Rule 19(i). 29. Dismissal or Termination for Misconduct — There were allegations of misconduct against the respondent and he was suspended during the pendency of enquiry. Sanction for his prosecution was also given. No other person of the department excepting respondent was retrenched. It is clear that the order terminating his service was only a guise for his dismissal. Procedure laid down under Art. 311 should have been followed. Order held null and void and inoperative. Respondent entitled to his pay

R . 11]


229

and allowances. Art. 102 of Constitution applies and not Art. 120. State of Rajasthan v. Ratan Lal Sogani, 1970 SLR 87. Where the employee in an Ordnance factory was twice found sleeping during duty hours, he is not fit to remain in service. However, removal was substituted for dismissal. Kamal Kumar Ahirwar v. Union of India, (1988) 5 SLR 593 (CAT Jabalpur). 30. Dismissal of Police Officer for Misconduct — The provisions of Police Rules are to be complied with. Departmental action in disregard thereof was invalid. State of U.P. v. Babu Ram Upadhya, (1961) 2 SCR 679; Jagan Nath v. Sr. Supdt. of Police, AIR 1962 Punjab 38; Delhi istration v. Chanan Shah, (1969) 2 SCJ 644: (1969) II SCWR 86: AIR 1969 SC 1108: 1969(3) SCR 653: 1969(1) SCC 737: 1969 SLR 217 followed in Union of India v. Ram Kishan, (1971) 1 SCWR 838: AIR 1971 SC 1403: 1971 Supp SCR 757: 1971(2) SCC 352: 1971 Lab IC 894: 1971 CAR 279; See also State of Haryana v. Surjan Singh, (1990) 2 SLR 88 (P&H). A constable of Police consuming liquor on duty and assaulting his colleague. It was held to be gravest act of indiscipline and an order of dismissal held to be proper. State of Punjab v. Jagir Singh, 2002(1) SLR 398 P&H. Absence from duty by Police Officer is gravest act of misconduct for which dismissal was held to be justified. State of Punjab v. Surjit Singh, 2002(3) SLR 148 P&H. An Inspector of Police, a higher ranking officer, if he demands and accepts illegal gratification and restrains himself from initiating prosecution against the offender, it would have an effect on the maintenance of law and order in the society. Order of dismissal from service was therefore affirmed. Government of Andhra Pradesh v. B. Ashok Kumar, AIR 1997 SC 2447: 1997(5) SCC 478: 1997(5) JT 412: 1997(2) LLN 600: 1997(76) FLR 598: 1997(2) SLJ 238: 1997 Lab IC 2353: 1997(2) UJ 185: 1997(4) SLR 242. When abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of the abusive language. No straight jacket formula could be evolved in adjudging whether the abusive language in the given circumstances would warrant dismissal from service. Each case had to be considered on its own facts. What was the nature of the abusive language used by the police constable in this case was not stated. Therefore the imposition of punishment of dismissal from service was held to be harsh and disproportionate to the gravity of charge imputed to the delinquent constable. Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6) SCC 157: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929. 31. Dismissal with Retrospective Effect — An order of dismissal with retrospective effect is in substance an order of dismissal as from the date of the order with the super added direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The court cannot a new order of dismissal, but surely it can give effect to the valid and severable part of the order. R. Jeevaratnam v. State of Madras, (1966) II SCWR 464: AIR 1966 SC 951: 1966(2) SCR 204: (1967) 1 SCJ 404:

230


[R . 11

1967 SLR 657. In Puran Singh v. State of Punjab, 1982 (2) SLR 126, the dismissal was also quashed. Order of dismissal can not be ed with retrospective effect. Punjab State Electricity Board v. Gurpal Singh Bhamra, (1989) 3 SLR 19 (P&H) (S.S. Sodhi, J.). See also Dharam Veer Sharma v. United Commercial Bank, 1997 (3) SLR 319 (P&H); Gurudas G. Priolkar v. Union Bank of India, 1997 (5) SLR 157 (Bom) (DB); Subhashish Mukherji v. State of Haryana, 1997 (5) SLR 746 (P&H); Satyendra Jeet Singh v. Union of India, ATR (1986) 2 CAT 268. 32. Dismissal Order, When Becomes Effective — Mere ing of the order of dismissal would not make it effective unless it was published and communicated to the concerned officer. State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313: (1966) 2 SCJ 777: 1966(2) LLJ 188; Rama Kant Banik v. District School Board, AIR 1969 Calcutta 397; Bansidhar Panigrahi v. State of Orissa, 1975 SLJ 150: 1975 (2) SLR 725: 1975 Lab IC 932. When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982 (2) SLJ 368: 1982 (2) SLR 724. Where order of termination is ed by the appointing authority, its communication by any other authority would not render it bad in law. Union of India v. Sumitra Devi, 2000 (2) SLR 403 SC. 33. Dismissal, Discharge or Removal for Overstaying Leave — Dismissal, discharge or removal from service for overstaying leave without inquiry and without giving reasonable opportunities to the employee concerned as required by Art. 311 is illegal. Jai Shankar Kar v. State of Rajasthan, AIR 1966 SC 492: 1966(1) SCR 825: 1966(2) LLJ 140: (1966) 1 SCJ 731; Mafatlal Narandas Barot v. J.D. Rathod, AIR 1966 SC 1364: 1966(3) SCR 40; Maqbool Hussain v. Supdt. of Police, 1969 SLR 660; see also Sahoodul Haque v. Registrar, Co-operative Societies, (1974) II SCWR 346: AIR 1974 SC 1896: 1975(3) SCC 108: 1974(2) SLR 547: 1974 Lab IC 1276. 34. Dismissal for Absence from Duty — Pay deducted for absence from duty without leave and absence was treated leave without pay. Employee cannot be dismissed for absence from duty under such circumstances. Tito Francisco Perera v of Goa, 1978 SLJ 614; Anwar Khan v. of Goa, 1978 SLJ 450; Chamarthal Kalan Co-operative Agricultural Service Society Ltd., v. Nand Singh, (1994) 1 SLR 385 (P&H); Ram Kumar v. State of Haryana, 1997 (5) SLR 504 (P&H). Gravity of such misconduct as an act of indiscipline cannot be mitigated it as detrimental effect on public rights convenience and therefore, order of dismissal was restored. Divisional Controller, NWKRTC, Bagalkot v. Raghavendra Madahava Katti, 2002(1) SLR 43 Kar (DB); Absence from duty without proper intimation is a grave offence warranting removal from service as mere making a request for leave which was not accepted is not sufficient explanation. Mithilesh Singh v. Union of India, 2003 (2) SLR 620 SC.

R . 11]


231

Once the leave is regularised without pay then there is no ground to terminate the services. Chhotey Lal v. General Manager, 2001(4) SLR 387 Delhi. Absence from duty was condoned by the SP who ordered the treatment of his absence from duty as leave with pay. It was held that the charge of absence from duty if there was any, stood condoned. State of Punjab v. Charanjit Singh, 2001(1) SLR 183 P&H. In another case when period of absence was treated as leave without pay it was held that it does not obliterate order of dismissal as it is only for maintaining correct service record. Deputy Commissioner of Police v. Jorawar Singh, 2001(1) SLR 158 Delhi (DB): 2000(4) AD(Delhi) 873 See also Maan Singh v. Union of India, 2003 (2) SLR 607 SC explaining State of Punjab v. Bakshish Singh, 1998 (8) SCC 222: 1998 (5) SLR 625 SC and State of Madhya Pradesh v. Harihar Gopal, 1969 SLR 274 SC. While considering the misconduct of absence from duty the punishing authority or appellate authority ought to consider the length of service rendered by the employee, while imposing the punishment. Mahipat (Ex. Constable) v. State of Haryana, 1994(4) SLR 311 relied in Jamila v. State of Rajasthan, 2002(3) SLR 501 (Raj). Employee remained absent without leave for 162 days and dismissed. Dismissal order was set aside by Labour Court on misplaced sympathy. Held that gravity of such misconduct as an act of indiscipline cannot be mitigated it as detrimental effect on public rights convenience and therefore, order of dismissal was restored. Divisional Controller, NWKRTC, Bagalkot v. Raghavendra Madahava Katti, 2002(1) SLR 43 Kar (DB). The abandonment of service should not be inferred unless the intention of the workman to abandon the service is clear and unambiguous. The intention may be inferred from the acts and conduct of the party and is a question of fact. Temporary absence is not ordinarily sufficient to constitute as “abandonment of office”. There must be total or complete giving up of duties so as to indicate an intention not to resume the same. When a workman, on expiry of his leave, submitted several representations to the employer (as happened in the instant case) (a) expressing his intention and willingness to the duty and (b) praying for permission of the higher authority to his duty and when the employer chose not to reply to such representations thereby keeping the workman waiting for permission to the duty and when in this process and for these reasons the workman could not his duty, in such circumstances, absence of the workman cannot be equated with “absent without seeking permission” so as to attract the fiction created by the work “shall be deemed to have left the service of the company on his own record.” Radha Gobinda Ghatak v. State of West Bengal, 1999(2) SLR 142 Cal. The unduly long absence from duty without sanctioned leave in given cases may result in voluntary presumption of abandonment of service and in such case no element of punishment is involved which may require adherence to principles of natural justice. Anand Bharti v. State of Rajasthan, 2002(3) SLR 60 Raj (DB). See also Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, U.T., Chandigarh, 2001(1) SLR 467 P&H (DB),

232


[R . 11

Punjab State v. Hari Singh, 2001(1) SLR 151 P&H and Gopal Clothing Company Ltd. v. Presiding Officer, 2001(1) SLR 142 (DB). While considering the misconduct of absence from duty the punishing authority or appellate authority ought to consider the length of service rendered by the employee, while imposing the punishment. Mahipat (Ex. Constable) v. State of Haryana, 1994 (4) SLR 311 relied in Jamila v. State of Rajasthan, 2002 (3) SLR 501 (Raj). 35. Dismissal for assaulting co-employee — Serious act of misconduct of assault on a co-workman on the premises of the factory proved against the workman. A clean past record does not give a licence or permission to the workman to commit an assault and to get away with the same on the ground of clean and good past. Punishment of dismissal cannot be said to be shockingly disproportionate. Precipenium Valve Manufacturers v. Presiding Officer, 2001 (4) SLR 85 Bom. An employee in a drunken state assaulting his superior in office is a grave misconduct. For such misbehaviour the employee was convicted but released on probation. But it was held that release on probation means misconduct was not serious and such employee could continue in service. Babulal v. State of Rajasthan, 2002 (1) SLR 599 Raj (DB). 36. Dismissal for gravest misconduct— A constable of Police consuming liquor on duty and assaulting his colleague. It was held to be gravest act of indiscipline and an order of dismissal was held to be proper. State of Punjab v. Jagir Singh, 2002(1) SLR 398 P&H. Absence from duty by Police Officer is gravest act of misconduct for which dismissal was held to be justified. State of Punjab v. Surjit Singh, 2002 (3) SLR 148 P&H. 37. Dismissal, Power of — Power of dismissal cannot be exercised by an authority subordinate in rank to the appointing authority. State of U.P. v. Ram Naresh Lal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 SLR 819: 1970 Lab IC 1063. Article 311 gives protection to a member of a civil service of the Union or an all-India service or a civil service of a State or to a person holding a civil post under the Union or a State against dismissal or removal by an authority subordinate to that by which he was appointed. Article 311 does not provide that a member of a civil service or a person holding a civil post either under the Union or a State cannot be dismissed or removed by an authority except the appointing authority. Held that there is no requirement that the authority which takes disciplinary action must continue to have the power of making appointment to the civil service or on a civil post under the Union or a State. It can be any other authority so long as it is not subordinate in rank or grade to the authority by which the delinquent Government servant was appointed. That is the only requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v. Uttar Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC 727: 1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) LLJ 729: 1996(3) SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465. However it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an

R . 11]


233

officer subordinate to the appointing authority. Steel Authority of India v. R.K. Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT 379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57: 1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6) SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929; Additional Supdt. of Police v. T. Natarajan, 1998(9) JT 257: 1999(3) LLJ 1482: 2000(85) FLR 39. The appointment was made by the Commandant General even though the Provincial Government was to make such appointment. Therefore, the Commandant General had the power to dismiss the appellant. The dismissal order would not be void on the ground that it is made by an authority lower than the appointing authority. Ramanand Singh v. State of Bihar, 1982(1) SCC 214: AIR 1982 SC 1394: 1982(1) SLR 693: 1982 BLJ 395: 1982 BLJR 438: 1982 Pat LJR (SC) 55: 1982(2) SCWR 209: 1982(14) Lawyer 58. For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head of the Office. As a result, the Head of Office, namely, the Assistant Manager is the competent authority to appoint. Once he is the competent authority to appoint, he is equally, the competent authority to impose the penalty. Himachal Road Transport Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997 (9) SCC 39: 1997 (2) SLR 580: 1997 (76) FLR 233: 1997 (2) SCJ 172: 1997 Lab IC 2652: 1998 (1) LLJ 1058: 1998 (1) SLJ 44: 1998 (3) LLN 24. As regards competent authority to issue charge sheet, see Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997 (2) SCC 708: 1997 (1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1; Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996 (6) JT 450: 1996 SCC (L&S) 433: 1996 (32) ATC 663: 1996 (2) SLR 470: 1996 (1) UJ 424: 1996 (74) FLR 2510: 1996 (2) LLN 515: 1997 (2) LLJ 191.

TERMINATION OF SERVICES Explanation (viii) Termination of the Services of — (a) A Government servant appointed on probation; or (b) A temporary Government servant; or (c) A Government servant employed under an agreement.

SYNOPSIS Probationer 1.

Probationer – meaning of ... .......................................................................................... 236

2.

Probationer, Status of ..................................................................................................... 236

3.

Probation, duration of..................................................................................................... 236

234


[R . 11

4.

Probationer, discharge of................................................................................................ 236

5.

Removal for misconduct or inefficiency ........................................................................ 237

6.

Reversion by order simpliciter – Motive may be misconduct, negligence or inefficiency..................................................................................................................... 238

7.

Reversion after probationary period ... ........................................................................... 239

8.

Reversion by way of punishment ................................................................................... 239

9.

Reversion for not being fit for confirmation................................................................... 239

10. Reversion for unsuitability ............................................................................................. 239 11. Termination of probation ............................................................................................... 239 12. Termination of service according to rules ...................................................................... 240 13. Termination of service after expiry of probationary period............................................ 240 14. Termination of service for unsatisfactory work.............................................................. 241 15. Termination of service for unsuitability .. ...................................................................... 242 16. Termination of service for medical unsuitability............................................................ 242 17. Termination of service under of appointment .. .................................................... 244 18. Communication of reasons for termination .. ................................................................. 245

Termination of Service of Probationer or Temporary Government Servant 19. Termination of services of probationer or temporary Government servant: Application of Art. 311 ... .................................................................................................................. 245 20. Termination of services of a probationer or a temporary Government servant – Principles which can be deduced from the Supreme Court decisions ............................ 247 21. Form of order not decisive whether ed by way of punishment ... ............................ 248 22. Termination of service, order simpliciter ... ................................................................... 248 23. Appointment and termination, without approval .. ......................................................... 250 24. Termination of service under - Sub-rule (I) of rule 5 ... ................................................. 250

Termination of Services 25. According to service rules .............................................................................................. 250 26. Authority which can terminate service ... ....................................................................... 251 27. After 15 years service with stigma .. .............................................................................. 251 28. For not ing duty after transfer .. ............................................................................... 251 29. For absence or overstaying leave ... ............................................................................... 251 30. Juniors retained ... .......................................................................................................... 252 31. Termination of service on abolition of post ................................................................... 254 32. By authority subordinate to the appointing authority ... ................................................. 255 33. Termination by authority not competent .. ..................................................................... 255 34. On overall assessment of service record ........................................................................ 255 35. Services no longer required .. ......................................................................................... 255 36. With stigma .................................................................................................................... 256

R . 11]


37. Without stigma ............................................................................................................... 256 38. Service Terminated without Asg Cause, Motive Behind is Irrelevant .................. 256 39. Reason, if Assigned must be Valid................................................................................. 256 40. At the Request of Civil Servant ...................................................................................... 256 41. By consent ...................................................................................................................... 257 42. For Misconduct, Negligence or as Penalty ..................................................................... 257 43. For not ing Prescribed Examination ........................................................................ 257 44. For not being Selected by Selection Committee or Public Service Commission ........... 257 45. On Resignation ............................................................................................................... 257 46. After Preliminary Enquiry Held Ex Parte ..................................................................... 257 47. After Preliminary Enquiry : Notice to Show Cause not Required .................................. 258 48. After Enquiry to Ascertain Whether Fit for Service ....................................................... 258 49. After Full Scale Enquiry ................................................................................................ 258 50. Enquiry Withdrawn, Service Terminated ....................................................................... 258 51. Enquiry Quashed, Subsequently Service Terminated..................................................... 258 52. Without Formal Enquiry ................................................................................................ 259 53. When under Suspension, Without Enquiry .................................................................... 259 54. Without Show Cause Notice Under Rules ..................................................................... 259 55. Without Show Cause Notice Under of Appointment .......................................... 259 56. Termination of Service on Adverse Police Report ......................................................... 259 57. Termination of Service Forthwith : Whether Notice to be Issued with the Order of Pay260 58. Notice Sent by ed Post, Avoiding of ................................................................. 260 59. Termination of Service by Way of Punishment ............................................................. 260 60. When Dismissal ............................................................................................................. 261 61. When Appointment Coterminous with Continuance of Post .......................................... 261 62. With Retrospective Effect .............................................................................................. 262 63. Termination of Service of Employee on Work Charged Establishment for Misconduct 262 64. Termination of Service of Employee on Contract, as Penalty ........................................ 262 65. Application of Article 311 where Service Terminated in Pursuance of Contract or Rules .............................................................................................................................. 263 66. Appointment under Agreement : Appointee Holding Civil Post : Termination of Service by Notice under Agreement: Void ..................................................................... 263 67. Before Expiry of Fixed Period ....................................................................................... 263 68. Termination of Tenure Post before Full Period .............................................................. 264 69. Termination of Service of an Employee of Government Company ............................... 264 70. Termination of Service under Article 310 (1) ................................................................ 265 71. Government Servants who Belong to Scheduled Castes and Scheduled Tribes have no Special Protection Regarding Termination of Service ................................................... 266

235

236


[R . 11

1. Probationer, Meaning of — The term “probationer” is defined in Rule 2.15 of the “Supplementary Rules” as meaning “Government servant, employee on probation in or against a substantive vacancy in the cadre of a department” and does not lay down any conditions or the circumstances in which such a person may be confirmed or the period of probation or the bar to extend the period. The term probationer in its ordinary dictionary meaning connotes the employment either of a fresh entrant to service on tests or of an existing officer to a higher post on test and is tantamount to suspension of final appointment to an officer until a person temporarily appointed has, by his conduct proved himself to be fit to be and the probation has been equated to “a period of testing”. M.P. Pandey v. Union of India, 1972 (3) SLR 72. 2. Probationer, Status of — A probationer does not have a substantive status though he might be considered to have attributes of such a status, which is not the same thing as to have the status itself. Jagraj Singh v. State of Punjab, 1969 SLR 623 (FB). 3. Probation, duration of — The period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the Rules at which he is given a fair and reasonable opportunity of being heard. He may also come to lose the post on compulsory retirement. Life Insurance Corporation of India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25. In one case, as of appointment clearly indicated that even after expiry of probation period, as employee can be continued in service as a temporary employee. Period of such temporary engagement is not limited. The stand that though there was no written confirmation, by conduct the employee was confirmed in service was held to be clearly contrary to requirements which could not be accepted. Madan Mohan Sahu v. Chairman-cum-Managing Director, Mahanadi Coal Fields Ltd., 1999(3) SLR 164 Ori (DB). 4. Probationer, Discharge of — The employer is entitled to engage the service of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally, services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without asg any reason. If the order on the face of it states that his services are

R . 11]


237

being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. Normally, therefore, it is preferred that the order itself does not mention the reason why the service are being terminated. Krishnadevaraya Education Trust v. L.A. Balakrishna, AIR 2001 SC 625: 2002 SCC(L&S) 53: 2001(1) JT 617: 2001(1) SLR 635 (SC): 2001 Lab IC 642: 2001 AIRSCW 253: 2001 AIR Kant HCR 2152: 2001(1) Cur LR 534: 2001(2) LRI 1248. The term of appointment permitting the employee to terminate the service of the employee during the period of probation cannot be said to be illegal or unfair. When a person is appointed on a specific condition that he will be on probation, the employer has a right to adjudge the suitability of the employee in the light of his performance. The employee is on trial. The employer has a right to inform an employee that his performance shall be watched for a particular duration of time. If he does not come upto the required standard, his services can be terminated. Held that no violation of any principle of public policy was involved. The action was not violative of any rule. Section 23 of the Contract Act is not even remotely attracted. Jasmer Singh v. Chandigarh State Co-operative Bank Ltd., 1999(2) SLR 47 P&H (DB). Where service of a probationer is terminated on the ground that his performance was not found satisfactory during the period of probation, the termination is not punitive in nature and the provisions of Article 311(2) of the Constitution need not be followed. Where the services of the petitioner were terminated on the ground that her performance during the second year of probation was not satisfactory and such a termination cannot be held to be punitive or to cast any stigma so as to attract the provisions of Article 311(2) of the Constitution. Aditi Choudhury (Smt) v. State of Tripura, 1999(3) SLR 339 Gau. Generally speaking when a probationer”s appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer”s appointment, is also not stigmatic. Parvanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9) JT 420: 2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2002 AIRSCW 4616: 2002 Lab IC 113: 2001 All LJ 2807: 2002(1) AllWC 42: 2002(100) FJR 64: 2002(92) FLR 349: 2001(1) LLJ 690: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat LJR 204: 2002 SCC(L&S) 170: 2002(1) SLJ 336. An employer would however, have no power to terminate an employee during the period of probation, unless of course such a right has been reserved whether under the appointment order itself or by any relevant Rules/Regulations relating to appointment probation and confirmation of appointees. R. Swaminathan v. Manipal Academy of Higher Education, 2002(2) SLR 467 Kar. 5. Removal for Misconduct or Inefficiency — If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reasons without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of

238


[R . 11

Art. 311(2) of the Constitution. Shamsher Singh v. State of Punjab, 1974 (2) SLR 701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831; State of Maharashtra v. Veerappa R. Sabaji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., (1980) 2 SCJ 179: AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108; Ajaya Mohanty v. Union of India, 1981 (1) SLJ 552: 1982 (2) SLR 681. For termination of service see Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC). 6. Reversion by Order Simpliciter — The very fact that a person is a probationer implies that he has to prove his worth and suitability for the higher post in which he is officiating. If his work is not found to be satisfactory, he is liable to be reverted to his original post even without asg any reason. High Court of Madhya Pradesh through Registrar v. Satya Narayan Jhavar, AIR 2001 SC 3234: 2001(7) SCC 161: 2001(6) JT 368: 2001 Lab IC 3281: 2001 AIRSCW 3112: 2002(1) BLJR 450: 2001(91) FLR 626: 2002(1) JLJR 40: 2002(1) Jab LJ 103: 2002(1) Pat LJR 25: 2001 SCC (L&S) 1087: 2001(3) SCJ 135: 2001(3) SLR 645: 2001(2) UJ 1281. See also Wasim Beg v. State of U.P., AIR 1998 SC 1291: 1998(2) JT 354: 1998(2) SLR 174 (SC). Motive of Reversion may be Misconduct, Negligence or Inefficiency — “Motive” is the moving power which impels action for a definite result, or to put it differently, “motive” is that which incites or stimulates a person to do an act. An order terminating the service of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is ed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. Chandra Prakash Shahi v. State of U.P., AIR 2000 SC 1706: 2000(5) SCC 152: 2000(5) JT 181: 2000(3) LLN 21: 2000(2) SLR 772 (SC). Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influenced the authority to the order of reversion, such reversion cannot be termed as penalty or punishment. Union of India v P.S. Bhatt 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88. When the order terminating the service referred to other communications which contained stigmatic observations, it was held that the in view of language of letters findings were part of the foundation of the impugned order and it was not a case of mere motive and therefore the order of termination was set aside. Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, AIR 1999 SC 983: 1999(3) SCC 60: 1999(1) SLR 622: 1999(1) LLJ 1054: 1999(1) SCJ 415: 1999 Lab IC 1114: 1999(2) LLN 44: 1999(81) FLR 687: 2000(96) FJR 607.

R . 11]


239

7. Reversion After Probationary Period — Probationary period of respondent was not extended and he was reverted to his substantive post. Order held valid. State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089; Golak Nath Barman v. State of W.B., 1974 SLJ 535. 8. Reversion by Way of Punishment — A probationer can be reverted during the probationary period and even thereafter to his original post, if he is having no legal right to the higher post. But if he is reverted to his original post by way of punishment, the provisions of Art. 311 will apply. State of Bombay v. F.A. Abraham, AIR 1962 SC 794: (1962) 2 SCJ 168; Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711: (1963) 1 SCR 416; S.N.Nagarjulu v. Railway Board, 1981 (3) SLR 305: 1982 (2) SLJ 13; G. Venugopal v. Director of istration Appellate Authority, 1993 (4) SLR 81 (CAT Hyderabad); Prem Singh Verma v. Union of India, 1993 (2) SLR 108 (CAT New Delhi). 9. Reversion for not Being Fit for Confirmation — Respondent posted as Tahsildar on probation. Inquiry started for the purpose of affording him an opportunity to show cause why his probation should not be terminated forthwith. After considering explanation, probation was terminated. It cannot be said that by terminating the probation any penalty was imposed. Reversion is not as punishment. No violation of Art. 311. State of U.P. v. Akbar Ali Khan, (1966) II SCWR 701: AIR 1966 SC 1842: (1967) 2 SCJ 79. In one case the employee was holding a temporary service and was on probation an order of termination simpliciter was ed against him. As the service records were found unsatisfactory, it was held that the termination order cannot be held to be arbitrary and capricious. Tarakeswar Mahapatra v. Chairman, Haldia Development Authority, 1999(2) SLR 754 Cal (DB). Also see Allied Service Matters — Confirmation. 10. Reversion for Unsuitability — A reversion on the ground of unsuitability is an action in accordance with the of which the officiating post is held not a reduction in rank by way of punishment to which Art. 311 of the Constitution could be attracted. Union of India v. R.S. Dhaba, (1969) 1 SCWR 922: 1969 Cur LJ 461; State of Bombay v. F.A.Abraham, AIR 1962 SC 794: (1962) 2 Supp SCR 92; I.N.Saksena v. State of M.P., (1967) 1 SCWR 665; Superintending Engineer v. B.B.Singh, 1975 Lab IC 1023: 1975 SLJ 600; H.Krishnamurthy v. State of Karnataka, 1982 Lab IC 397: 1981 (2) SLJ 590. The authority may come to the conclusion that on of inadequacy for the job or for any temperamental or other object not involving moral turpitude, the probationer is unsuitable for the job and hence she must be discharged. It would not amount to punishment. Perpetua E. Rodrigues v. Goa Public Service Commission, Goa, 1999(3) SLR 667 Bom (DB). 11. Termination of Probation — Appellant State Government appraised respondent of the grounds for holding an inquiry and gave him opportunity to show cause why his probation be not terminated. Respondent submitted explanation. Governor ordered for termination of probation and also ordered that respondent is not

240


[R . 11

considered for promotion for a period of seven years. After considering material of respondent, Governor cancelled part of the order which related to stoppage of promotion. Order terminating probation was upheld. U.P. Subordinate Revenue Executive Service (Tahsildars) Rules, Rule 14, State of U.P. v. Akbar Ali Khan, (1966) II SCWR 701: AIR 1966 SC 1842: 1966(3) SCR 821: (1967) 2 SCJ 79. 12. Termination of Service According to Rules — Termination of service of a probationer according to rules is neither dismissal nor removal. Article 311 has no application. Ranendra Chandra v. Union of India, AIR 1963 SC 1552: (1964) 2 SCR 135: (1964) 1 SCJ 578; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1976 SLJ 583: 1976 (2) SLR 859: 1976 Lab IC 1647; Jai Singh v. State of Haryana, 1977 (2) SLR 371 (FB). See also Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 539: 1997 (1) SLR 270 (SC). 13. Termination of Service After Expiry of Probationary Period — It is well settled that a person appointed on probation does not ordinarily get automatic confirmation on the expiry of stipulated probationary period. After expiry of probationary period he remains a probationer unless the appointment order contains provisions for his automatic confirmation. His services can be terminated if he is unsuitable. Giovanola v. Industrial Tribunal, Calicut, AIR 1969 Kerala 313; State of U.P. v. Tilak Singh, 1975 Lab IC 1021: 1975 SLJ 94: 1976 (1) SLR 129. Where even though there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. Karnataka State Road Transport Corporation v. S. Manjunath, AIR 2000 SC 2070: 2000(5) SCC 250: 2000(3) SLJ 270: 2000(4) SLR 539: 2000 Lab IC 1986: 2000(3) LLN 86: 2002(1) LLJ 910. The Constitution Bench of Supreme Court in State of Punjab v. Dharma Singh, AIR 1968 SC 1210, while distinguishing the other line of cases held that the presumption about continuation, beyond the period of probation, as a probationer stood negatived by the fixation of a maximum time limit for the extension of probation. Consequently, in such cases the termination after expiry of the maximum period upto which probation could be extended was held to be invalid, inasmuch as the officer concerned must be deemed to have been confirmed. Where on a plain grammatical meaning being given to the words used in the Rules, does not provide for a deemed confirmation on expiry of the maximum period of probation, and on the other hand it contemplates a positive order of confirmation to be ed by the Appropriate Authority, if the Authority concerned is satisfied about the fitness of the probationer for confirmation, and if the probationer has ed the departmental examination, as prescribed. It was held that mere continuance of the probationer after considering his case for confirmation during the period of probation and finding him unsuitable for confirmation by the decision of appointing authority by no stretch of imagination can be construed to be a confirmation by implication. High Court of Madhya Pradesh v. Satya Narayan Jhavar, AIR 2001 SC 3234: 2001(6) JT 368: 2001(7) SCC 161: 2001(3) SCJ 135

R . 11]


241

In one case the Petitioner was permanent resident of Tehsil Naraingarh. His name was ed with the Employment Exchange at Naraingarh. He got his name transferred from the Employment Exchange, Naraingarh to the Employment Exchange, Chhachhrauli. At that time there was no objection raised at either end. Not only that, when the occasion arose, the Employment Exchange, Chhachhrauli sponsored his name. The petitioner has given his permanent address of Naraingarh but mentioned that he was ed with the Employment Exchange, Chhachhrauli. Even at that time, there was no objection from any side and the petitioner was selected. Held that it is not fair on the part of respondents now to assert that the petitioner has indulged in using unfair means. The petitioner had stated correct facts. It was for the respondent to raise objection if any at the appropriate time but they did not do so and instead allowed the petitioner to continue and complete his probation period of two years. It is too late in the day for the respondents now to assert that the petitioner”s recommendation from the Employment Exchange, Chhachhrauli was unfair. In fact, it would be unfair if now the appointment of the petitioner to a class IV post is quashed. Karan Singh v. State of Haryana, 2002(5) SLR 277 (SC). An employee promoted to higher post on probation which period could not be extended for more than two years. After expiry of two years the authority failed to take decision to confirm employee or to revert him. Decision taken 5 years held to be not within reasonable time and it was held that the employee was deemed to have been confirmed. State of Punjab v. Nazar Singh, 2002(2) SLR 384 P&H. 14. Termination of Service for Unsatisfactory Work — The services of a probationer can be terminated before the expiry of probationary period if his work is unsatisfactory or he is not fit for permanent employment. Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217; State of Bihar v. G.K.Prasad, AIR 1960 SC 689: 1960(1) LLJ 577; Collector and District Magistrate, Varanasi v. Mataru Ram, 1975 (2) SLR 605. Unsatisfactory performance of the official may have been the motive but not the basis of the termination order, the order was simpliciter and was not by way of punishment and no penal consequences visited him as laid down in Dhingra”s case (supra), order not illegal. State of Maharashtra v V.G.Koppar, AIR 1981 Bom 131; Mahindergarh Central Co-operative Bank v. Mahender Pal, 1982 (1) SLR 317. Where order of termination was ed simply because the employee”s performance was not found satisfactory and he was informed about it and the order of termination was not stigmatic, it was held that order of termination was proper. Devender Arora v. Management of Albert and Devid Limited, 2003(2) SLR 56 Del. Reliance was placed upon Pavanendra Narayan Verma v. Sanjay Gandhi PGT of Medical Sciences, 2001 (8) SLR 722 SC while distinguishing V.P.Ahuja v. State of Punjab, 2002 (2) SLR 1 SC. The Punjab and Haryana High Court has however held that such termination of probationer on the ground of unsatisfactory work is retrenchment. Punjab State Cooperative Supply & Marketing Federation v. Presiding Officer, Labour Court, 2003 (2) SLR 208 P&H. See also Jagtar Singh v. State of Punjab, 2003 (2) SLR 617.

242


[R . 11

15. Termination of Service for Unsuitability — Order did not cast any stigma on appellant”s character or integrity nor did it visit him with any civil consequences. Art. 311 is not attracted. It is immaterial that the order was preceded by an informal enquiry with a view for ascertaining whether he should be retained in service. Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: (1970) 1 SCJ 257: 1969 SLR 429; Dr D.K. Gupta v. Union of India, 1977 (9) SLR 692: 1978 SLJ 277; Oil & Natural Gas Commission v. Dr. Md. S.Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2) SLR 792. The decision to terminate the services of a temporary Government servant on ground of unsuitability in relation to the post held by him is not by way of punishment and no stigma is attached to him by reason of the termination of his service. Commodore, Commanding Southern Naval Area v. V.N. Rajan, 1981(3) SCR 165: AIR 1981 SC 965: 1981(2) SCC 636: 1981 Lab IC 605: 1981(1) SLR 656: 1981 SCC(Lab) 428: 1981(1) SCWR 388: 1981(2) SCJ 85; Lakshmaiah v. K.S.R.T.C., 1982 (2) SLJ 49: 1982 (2) SLR 170. In one case charge sheet was issued to Probationer and summary inquiry was held in the matter. The Inquiry Officer finding nothing more than inability of the employee to meet the requirement of the post. Order of termination ed immediately thereafter was held to be not stigmatic. Parvanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002 SC 23: 2002(1) SCC 520: 2001(9) JT 420: 2002(1) LLJ 690: 2001(8) SLR 722 (SC): 2001 AIRSCW 4616: 2001 All LJ 2807: 2002(92) FLR 349: 2002(100) FJR 64: 2002(1) Mad LJ 151: 2002(2) Mah LJ 151: 2002(1) Pat LJR 204: 2002 SCC(L&S) 170: 2002(1) SLJ 336. 16. Termination of Service for Medical Unsuitability — Termination of service on medical ground does not attract Art. 311. Jagannath Ghosh v. D.F.O., 1976 (1) SLR 243. The petitioner was performing and continues to perform his duties as Assistant Lineman for a continuous period of five years. It could not be disputed that 25 per cent disability suffered by the petitioner had in any manner, affected him in discharging his duties as Assistant Lineman. Held that the petitioner could not be given a marching order. Baldev Singh v. Haryana State Electricity Board, 1999(3) SLR 608 P&H (DB). After enactment of Persons with Disabilies (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 especially section 47 thereof termination of a person who acquires medical disability is not permissible. It has been held that other legislations must yield to this legislation and termination of service is not proper. Union of India v. Hasan Khan, 2003 (3) SLR 144 Raj. Under Section 2 (k) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the term establishment is defined which reads as under: 2(k) “establishment” means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) and includes departments of a Government;

R . 11]


243

Similarly section 47 of the aforesaid Act of 1995 provides as under: 47. Non-discrimination in government employment.— (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. After referring to the aforesaid provisions the Supreme Court (in Kunal Singh v. Union of India, 2003 (4) SCC 524) has made following observations: “The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realise the objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations.” “Section 47, which falls in Chapter VIII, deals with a employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of “disability” and “person with disability”. It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in of the definitions. It must be ed that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service”. The section further provided that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall

244


[R . 11

be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employee to protect an employee acquiring disability during service. Merely because under Rule 38 of the CCS(Pension) Rules, 1972, the appellant got invalidity pension is no ground to deny the protection mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier.” With these observations it set aside the termination of services of the Government employee and has laid down that no such termination can be effected and full effect must be given to the provisions of Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It may be added that this question of compliance of the Act of 1995 was raised for the first time before the Supreme Court but it was entertained by the Supreme Court as it was a pure question of law and relief was granted. 17. Termination of Service Under of Appointment — Under the of appointment the services of a probationer can be terminated at any time without any notice and without any cause. He is not entitled to protection under Art. 311(2). Union Territory of Tripura v. Gopal Chandra, AIR 1963 SC 601: 1963 Supp(1) SCR 266: 1963(1) Cr LJ 491: (1964) 2 SCJ 293; Ranendra Chandra v. Union of India, AIR 1963 SC 1552: 1964(2) SCR 135: 1964(1) SCJ 578: (1964) 2 SCR 135; State of Assam v. Ranjeet Chakravarty, 1975 Lab IC 116; Kartar Singh v. State of Punjab, 1982 (1) SLR 28. Where the appointment was on contractual basis and services were terminated on the expiry of period of contract, it was held that the termination was neither the retrenchment nor was illegal. District Animal Husbandry Officer v. Judge Labour Court, 2003 (1) SLR 786 Raj; Termination after completion of project is also held to be valid. Surendra Kumar Sharma v. Vikas Adhikari, 2003 (3) SLR 601 SC. An employer would have no power to terminate an employee during the period of probation, unless of course such a right has been reserved whether under the appointment order itself or by any relevant Rules/Regulations relating to appointment probation and confirmation of appointees. R. Swaminathan v. Manipal Academy of Higher Education, 2002(2) SLR 467 Kar. Termination of service in breach of of appointment is bad. Ishwer Chandar v. State of Haryana,1982 (1) SLR 253.

R . 11]


245

18. Communication of Reasons for Termination — The order of termination of service mentioned under various reasons which had impelled the Managing Committee to terminate the services. It was held that mere communication of a resolution in which reasons are recorded does not amount to casting a stigma on the probationer. Kassi Agrawal Samaj v. Regional Inspectress of Girl Schools, 1970 SLJ 1239. The decision was agreed to in Managing Committee, Model Inter College v. Indra Pal Gupta, 1973 SLJ 713. For termination paying one month salary see Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1997 (1) SLR 270 (SC). If the reasons are disclosed then it is said that the order was ed by way of punishment. If the reasons are not disclosed then the agent is that it is arbitrary, mala fide and capricious. The rule laid down by Supreme Court in most of the cases is that you have to look to the order on the face of it and find whether it casts any stigma on the employee. State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the service of the probationer were being terminated by way of punishment. Krishnadevaraya Education Trust v. L.A. Balakrishna, AIR 2001 SC 625: 2002 SCC(L&S) 53: 2001(1) JT 617: 2001(1) SLR 635 (SC): 2001 Lab IC 642: 2001 AIRSCW 253: 2001 AIR Kant HCR 2152: 2001(1) Cur LR 534: 2001(2) LRI 1248. Similarly where order of termination was stated to have been ed on of “omissions and commissions”, it was held that the order of termination without complying with the principles of natural justice is bad in law. Bijender Kumar v. State of Haryana, 2003 (1) SLR 35 P&H. Termination of Service of Probationer or Temporary Government Servant 19. Termination of Services of Probationer or Temporary Government Servant: Application of Article 311 — The Constitutional position has been made crystal clear by a bench of seven Judges of the Supreme Court in Shamsher Singh v. State of Punjab, (1975) 1 SCR 814: AIR 1974 SC 2192: 1974(2) SCC 831: 1974 (2) SLR 701, where the learned Chief Justice after an exhaustive review of the decision of Supreme Court observed:— No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity or showing cause against his discharge it may in a given case amount to removal from service within the meaning of Art. 311(2) of the Constitution.

246


[R . 11

Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry or charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Art. 311(2), he can claim protection. The facts of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. A probationer whose of service provided that it could be terminated without any notice and without any causes being assigned could not claim the protection under Art. 311(2). See Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 SC. There is no real conflict between the various decisions of Supreme Court in applying the principles involved in applying Art. 311(2). Even where there appears to be some conflict, it would vanish when the ratio decidendi of each case is correctly understood. Even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of Supreme Court, it cannot disregard or skirt the views expressed by the larger benches. State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462: 1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583: 1976(2) SLR 859; Oil & Natural Gas Commission v. Dr. Md. S. Iskander Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 (2) SLR 792: 1980 SLJ 591. R.S. Pathak, J. speaking for the Supreme Court in Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab 1C 747: 1980 SLJ 711: 1980 (2) SLR 108, said, “It is now well settled that an order terminating the services of a temporary Government servant and ex-facie innocuous in that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its the order was ed in fact with a view to punishing the Government servant, it is a punitive order which can be ed only after complying with Art. 311(2) of the Constitution”. Also see Union of India v. P.S. Bhatt, 1981(2) SCC 761: AIR 1981 SC 957: 1981 Lab IC 504: 1981(1) SLJ 212: 1981(1) SLR 370: 1981 SCC (Lab) 460: 1981(2) SCJ 65: 1981(2) SCWR 88; Commander, Commanding Southern Naval Area v. V.N. Rajan, AIR 1981 SC 965: 1981(3) SCR 165: 1981(2) SCC 636: 1981 (1) SLR 656: 1981 (2) SLJ 48; Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd., 2003 (3) SLR 150 SC. The protection under Art. 311 is equally available to temporary as well as permanent Government servants. State of Maharashtra v. V.G.Koppar, AIR 1981 Bom 131; Padam Prasad Sharma v. S.N.T., 1982 (1) SLJ 431.

R . 11]


247

Termination within the period of probation in of a clause of appointment letter authorising termination by way of three months” notice on either side was held to be not invalid. S. Ramachandran v. Hyderabad Allwyn Metal Works Ltd, 1995 Supp (3) SCC 674: 1996 SCC(L&S) 105: 1996(2) LLJ 741: 1996(2) LLN 879. However istrative direction to this effect, held to be arbitrary. Reserve Bank of India v. S. Jayarajan, 1995 Supp (4) SCC 584: 1996 SCC(L&S) 203: 1996(32) ATC 145: 1996(2) LLJ 735. 20. Termination of Services of a Probationer or a Temporary Government Servant : Principles which can be Deduced from the Supreme Court Decisions — (i) A temporary employee”s service can be dispensed with under the of contract of employment (rules of his employment) although his juniors may be retained if it can be shown that the juniors were not similarly placed as the person whose service has been dispensed with on of misconduct or inefficiency or since he was standing as a class by himself. (ii) In such case (as above), however, it would be incumbent upon the authority to satisfy the court that persons junior to the probationer, whose services have been terminated, do not stand at par with or have better service record than, the person impugning the order of termination. (iii) There can be no hard and fast rule nor any abstract proposition of law for the purpose of determining as to whether the order of termination simpliciter or by way of punishment is correct. It would depend upon the facts and circumstances of each case as to whether it can be deduced that the order of termination is by way of penalty or not. (iv) The motive behind the order of termination is not always germane or relevant for the purpose of determining as to whether an order innocuous in form can be dubbed as being an order of termination by way of punishment. But the substance and not merely the form of the order is relevant. Subhash Chandra Chaudhary, Jamuna Ram v. Bihar State Warehousing Corporation, 1980 (2) SLR 760, see State of Punjab v. Sukhraj Bahadur, AIR 1968 SC 1089: 1968 SLR 701; State of U.P. v. Saughar Singh, AIR 1974 SC 423: 1974(2) SCR 335: 1974(1) SCC 218: 1974 SLJ 474: 1974 (1) SLR 435; State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108; Oil & Natural Gas Commission v. Dr. Md. S. Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 SLJ 591: 1980 (2) SLR 792; Commodore Commanding Southern Naval Area v. V.N. Rajan, AIR 1981 SC 965:1981(3) SCR 165: 1981(2) SCC 636: 1981 Lab IC 605: 1981 (2) SLJ 48: 1981 (2) SLR 656; Somnath Sahu v. State of Orissa, 1981 (2) SLR 550; T.D. Subramanian v. Union of India, (1981) 1 SCJ 197: AIR 1982 SC 776: 1981(4) SCC 150: 1982 Lab IC 442: 1982 (2) SLJ 20. (v) “Motive” is the moving power which impels action for a definite result, or to put it differently, “motive” is that which incites or stimulates a person to do an act. An order terminating the service of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of

248


[R . 11

general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is ed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. Chandra Prakash Shahi v. State of U.P., AIR 2000 SC 1706: 2000(5) SCC 152: 2000(5) JT 181: 2000(3) LLN 21: 2000(2) SLR 772 (SC); See also Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd., 2003 (3) SLR 150 (SC). 21. Form of Order not Decisive Whether ed by Way of Punishment — The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that it was ed by way of punishment and is in infraction of provisions of Art. 311. Shamsher Singh v. State of Punjab, 1974 (2) SLR 701: AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831; State of Punjab v. Prakash Singh, AIR 1975 SC 1096: 1975 SLJ 499: 1975 (2) SLR 85; State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108; Ajaya Mohanty v. Union of India, 1981 (1) SLR 785: (1981) 2 SLJ 552; Muralidhar Yeshwant Mayenkar v. Union of India, 1982 (1) SLJ 699: 1982 (2) SLR 482: 1983 Lab IC 62; Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd., 2003 (3) SLR 150 SC. The form of order is not conclusive of its nature and it might be a cloak of deceive for an order founded on misconduct. S.R. Tiwari v. District Board of Agra, AIR 1964 SC 1680: 1964(2) SCJ 300: (1964) 3 SCR 55. It may be noted that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or istrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. State of Bihar v. Shiv Bhikshuk, (1970) II SCWR 606; 1970 SLR 63: AIR 1971 SC 1011: 1971(2) SCR 191: 1970(2) SCC 871; Union of India v. R.S. Dhaba, (1969) 1 SCWR 922: 1969 Cur LJ 461; R.K. Bhat v. Union of India, (1970) II SCWR 667: 1970 Cur LJ 924; Sarju Singh v. Additional District Magistrate, 1973 (2) SLR 90; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC 684: 1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28; Nepal Singh v. State of U.P., (1980) 2 SCJ 179: AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108. 22. Termination of Service Order Simpliciter — No reasons given for termination of services. Order is one simpliciter and not by way of punishment. State of Nagaland v. G. Vasantha, AIR 1970 SC 537: 1970 SLR 637: 1970 Lab IC 419; Parshuram v. Union of India, 1974 SLJ 626; Oil & Natural Gas Commission v. Dr. Md. S. Iskandar Ali, 1980 SLJ 591: 1980 (2) SLR 792: AIR 1980 SC 1242; Union of India v. P.S. Bhatt, (1981) 2 SCJ 65: 1981 (1) SLJ 212 (SC): 1981 (1) SLR 370: AIR 1981 SC 957; Murlidhar Yeshwant Mayenkar v. Union of India, 1982 (1) SLJ 699: 1982 (2) SLR 482: 1983 Lab IC 62.

R . 11]


249

If the inquiry officer held no sittings, did not take evidence nor record any conclusions and if at that stage the inquiry was dropped and a simple order of termination was, ed, the same would not be punitive. Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., AIR 1999 SC 609: 1999 (1) SLR 44 (SC): 1999 (2) SCC 21: 1998 (8) JT 585: 1999 (1) LLJ 432: 1999 (2) LLN 57: 1999 (1) FLR 475: 1999 (95) FJR 93: 1999 (3) SLJ 100; See also Shailaja Shivajirao Patil v. President Hon. Khasdar UGS Sanstha, 2002(1) SLR 371 (SC): 2002(1) JT 431; relying upon Pavenendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences, AIR 2002 SC 23: 2001(1) SCC 520: 2001(9) JT 420 (SC): 2001 AIRSCW 4616: 2001 All LJ 2807: 2002(1) All MR 302: 2002(1) All WC 42: 2002(1) Andh LD 81: 2002(100) FJR 64: 2002(92) FLR 349: 2002(1) Mad LJ 151: 2002(2) Mah LR 374: 2002(1) Pat LJR 204: 2002 SCC (L&S) 170: 2002(2) SLJ 336: 2001(8) SLR 722. (i) The Court has power to look into entirety of circumstances preceding or attendant on the order of termination. K.H. Phadnis v. State of Maharashtra, AIR 1971 SC 998: 1971 Supp SCR 118: 1971(1) SCC 790: 1971 (2) SLR 345: (1973) 1 SCJ 420; State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011: 1971(2) SCR 191: 1970(2) SCC 871: (1971) 2 SCJ 68: 1970 SLR 863; Jagdish Prasad v. State of U.P. (1971) 2 SCJ 409: AIR 1971 SC 1224: 1971(2) SCR 583: 1970(3) SCC 631: 1970 SLR 938; A.M. Rode v Principal, Government Degree College, 1973 SLJ 710: 1973 (2) SLR 574. (ii) Where the order is ex facie an order of termination of service simpliciter, it does not cast any stigma on the respondent nor does it visit him with evil consequences not it is founded on misconduct, in the circumstances the respondent could not invite the Court to go into the motive behind the order. The Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research. State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462: 1976(4) SCC 52: 1976 Lab IC 1647: 1976 SLJ 583: 1976 (2) SLR 859. (iii) Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of service, it is the duty of authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Manager, Govt. Press v. D.B. Belliappa, AIR 1979 SC 429: 1979(2) SCR 458: 1979(1) SCC 477: 1979 Lab IC 146: 1979 SLJ 233: 1979 (1) SLR 351. Also see State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108. (iv) In Comm. Commanding, Southern Naval Area v. V.N. Rajan, AIR 1981 SC 965: 1981(3) SCR 165: 1981(2) SCC 636: (1981) 2 SCJ 85: 1981 (1) SLR 656: 1981 (2) SLJ 48, the Supreme Court looked into the file and found that the impugned order was not by way of punishment and no stigma attached to the respondent. (v) Having gone through the file relating to the termination of service of the petitioner, High Court came to the conclusion that the impugned order is founded on allegations of misconduct and negligence of duty. Held, the provisions of Art. 311 of the Constitution were clearly attached and it was not open to the authorities to have

250


[R . 11

terminated the service by giving the order a cover of termination simpliciter. Ajaya Mohanty v. Union of India, 1981 (1) SLR 785: 1981 (1) SLJ 552; Bhavansinh Raysinhji Rathod v. State Transport Corporation, 1981 (2) SLR 622. (vi) The order may be a motive and not a foundation as a ground for dismissal. During the period of probation, the authorities are entitled to assess the suitability of the candidates and if it is found that the candidate is not suitable to remain in service they are entitled to record a finding of unsatisfactory performance of the work and duties during the period of probation. Under these circumstances, necessarily the appointing authority has to look into the performance of the work and duties during the period of probation and if they record a finding that during that probation period, the work and performance of the duties were unsatisfactory, they are entitled to terminate the service in of the letter of appointment without conducting any enquiry. That does not amount to any stigma. Kunwar Arun Kumar v. Uttar Pradesh Electronics Corporation Ltd., 1996 Supp (8) SCR 19: 1997(2) SCC 191: 1997(1) LLN 570: 1997(1) SLR 136: 1997(1) SLJ 234: 1997(91) FJR 55: 1997(3) LLJ 791. Also see Notes 18 and 53. 23. Appointment and Termination without Approval — Respondent was appointed by District Council without approval of Governor. District Council terminated his services without approval of Governor. Held, the respondent cannot complain that his termination by the very Council without Governor”s sanction is invalid. H. Lyngdoh v. Cromlyn Lyngdoh, AIR 1971 SC 1110: 1971(3) SCR 903: 1971(1) SCC 754: 1971 (2) SLR 330 (SC). 24. Termination of Service Under Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 — Sub-rule (1) of Rule 5 provides:— “(1) (a) The services of a temporary Government servant who is not in quasipermanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant; (b) The period of such notice shall be one month: Provided that the service of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice at the same rates at which he was drawing them immediately before the termination of the service, or as the case may be, for the period by which such notice falls short of one month.” Termination of Services 25. According to Service Rules — The services of a temporary Government servant can be terminated in accordance with the rules applicable to temporary government servants. Where the order terminating the service on the face of it flows from a right to terminate service under the rules of service and it does not cast any stigma upon the employee and is made on an overall assessment of service record and it is found that the employee is not fit to be confirmed, the provisions of Art. 311 are not

R . 11]


251

at all attracted. State of U. P. v. Tilak Singh, 1975 SLJ 94: 1975 Lab IC 1021: 1976 (1) SLR 129; State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547: 1977(1) SCR 462: 1976(2) SCC 52: 1976 SLJ 583: 1976(2) SLR 859: 1976 Lab IC 1647. See also Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 539: 1997(1) SLR 270: 1997 (1) SLR 270 (SC); Coir Board, Ernakulam, Cochin v. Indira Devi, AIR 1998 SC 2801: 1998(3) SCC 259: 1998(2) JT 332: (1998) 1 SCJ 405. 26. Authority which can Terminate Service — (i) The dismissal by an authority other than the appointing authority by virtue of any delegation was permissible in law provided the dismissal was not by an authority subordinate to the authority which appointed a civil servant. State of U.P. v. Ram Nareshlal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 Lab IC 1063: 1970 SLR 819; Krishna Kumar v. Divisional Asst. Electrical Engineer, 1979 SLJ 532: 1979 (2) SLR 291: AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: (1980) 1 SCJ 183. (ii) In relation to a temporary Government servant not holding a specified post, the termination of service is to be made by the authority which appointed him. Om Prakash Gupta Swadheen v. Union of India, AIR 1975 SC 1265: 1976(1) SCC 594: 1975 Lab IC 813: 1975 (2) SLR 226: 1975 SLJ 675; Mohinder Singh v. State of H.P., 1976 (1) SLR 555; Ramanand Singh v. State of Bihar, 1982 (1) SLR 693 (SC). Termination of service of an employee after 8 years of service by an authority who below the rank of appointing authority was held bad in law and order of termination was set aside. Mahendra Singh v. State of U.P., 2003 (3) SLR 707 All. 27. After 15 Years Service with Stigma — Chief Minister made statement in Legislative Assembly, in answer to a question, “It is true that having put in 15 years of temporary service he is entitled to pension but on the other hand since his service was not satisfactory he can be removed on one month”s notice. On re-consideration of the matter the Government feels that he should be served show cause notice. Therefore, the Government reconsidered the matter.” Held, the Chief Minister”s statement did cast stigma on his character. Order terminating service and not allowing pension quashed. Madan Mohan Prasad v. State of Bihar, AIR 1973 SC 1133: 1973(3) SCC 166: 1973 Lab IC 918: 1973 (1) SLR 630: 1973 SLJ 349. 28. For not ing Duty After Transfer — Appellant, a temporary employee, was transferred. He did not immediately duty at new place and applied for leave. Even after expiry of leave he did not duty but applied for leave. Without proceeding to take disciplinary action, his service was terminated. Order held violative of Art. 311(2). N. Yellaih Swamy v. Director of Industries, 1971 (1) SLR 730 (AP). Similar view was taken in B.M. Tripathi v State of U.P., 1971 (2) SLR 738 (All): AIR 1971 All 346; Krishanlal Dhirajlal Vyas v. Oil & Natural Gas Commission, 1981 (1) SLJ 124. 29. For Absence or Overstaying Leave — Punishment without show cause is illegal that being in contravention of Art. 311 of Constitution. M.M.Joseph v. Union of India, 1979 (3) SLR 434; State of Rajasthan v. Mangal Singh, 1981 (1) SLJ 173.

252


[R . 11

Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying with the minimum principle of natural justice. L.Robert D”Souza v. Executive Engineer, Southern Railway, AIR 1982 SC 854: 1982(3) SCR 251: 1982(1) SCC 645: 1982 (1) SLJ 319: 1982 (1) SLR 864: 1982 Lab IC 811: 1982 (2) SCJ 29. The Supreme Court in the case of Jaishankar v State of Rajasthan, AIR 1966 SC 492: 1966(1) SCR 825: 1966(2) LLJ 140, held that the removal of a Government servant from service for over-staying his leave without complying with the provisions of Art. 311 of the Constitution was illegal even though it was sanctioned by the service regulations. That ratio is equally applicable to temporary Government servants. Ram Kishore Pandey v. Union of India, 1982 Lab IC 281: 1982 (2) SLR 602 (All). The unduly long absence from duty without sanctioned leave in given cases may result in voluntary presumption of abandonment of service and in such case no element of punishment is involved which may require adherence to principles of natural justice. Anand Bharti v. State of Rajasthan, 2002(3) SLR 60 Raj (DB). See also Punjab Land Development & Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, U.T., Chandigarh, 2001(1) SLR 467 P&H (DB), Punjab State v. Hari Singh, 2001(1) SLR 151 P&H and Gopal Clothing Company Ltd. v. Presiding Officer, 2001(1) SLR 142 (DB). 30. Juniors Retained — A full bench of Punjab and Haryana High Court in Y.K. Bhatia v. State of Haryana, 1977 (1) SLR 85, held that the termination of the services of a temporary Government employee does not offend Article 16 (1) of the Constitution merely because his juniors are retained in service and that the reversion of a Government employee temporarily promoted to a higher post does not also offend Article 16 (1) merely because his juniors are reverted. Of course, it will be open to the persons effected in individual cases to establish discriminatory treatment which cannot be explained except on the basis of “malice in law” or “malice in fact” without any suggestion of “malice in law” or “malice in fact” there can be no question of invoking the aid of Article 16 (1) of the Constitution against an order of termination of service or reversion of a temporary employee merely because juniors are continuing. The service of respondent had been terminated without asg any reason albeit in accordance with the conditions of his service, while three employees, similarly situated junior to him in the same temporary cadre had been retained. A charge of hostile discrimination had been levelled with sufficient particularity against the appellant. The Supreme Court in Manager, Government Branch Press v. D. B. Belliappa, AIR 1979 SC 429: 1979(2) SCR 458: 1979(1) SCC 477: 1979 Lab IC 146: 1979 SLJ 233: 1979 (1) SLR 351, held that of course, there is always some reason or cause for terminating the service of a temporary Government servant. It is not necessary to state reason in the order of termination communicated to the employee concerned. But where there is a specific charge of arbitrary discrimination, or some hostile motive is attributed to the authority terminating the service, it is incumbent on the authority making the impugned order to explain the same by disclosing the reason for impugned action. Since the appellant withheld that information from the Court, the conclusion of the court was that the respondent was picked out for the impugned action, whimsically

R . 11]


253

without any special reason which could put him in a class separate from that of his three juniors, who had been retained in service. The protection under Articles 14 and 16(i) will be available to such a temporary Government servant. After the judgment of Supreme Court in D.B. Belliappa”s 1979(2) SCR 458: 1979(1) SCC 477: AIR 1979 SC 429: 1979 Lab IC 146: 1979(1) SLR 351: 1979 SCC(Lab) 39: 1979 RLR 209: 1979 BBCJ (SC) 11: 1978 SLC 290: 1978(2) SCWR 359: 1978 SLWR 454 a case was referred to a Division Bench of Punjab and Haryana High Court in Krishan Chand Goyal v. Punjab State, 1980 (2) SLR 623 in view of the earlier Full Bench judgment in Y.K. Bhatia”s case referred to (supra). After considering various judgments of the Supreme Court and D.B. Belliappa”s case (supra) it has been held by the Division Bench:— (i) The fact that the service of temporary Government servant is terminated, either in accordance with the conditions of appointment or service rules, while his juniors are retained in service per se would not prove unequal treatment nor would it be violative of Articles 14 and 16 of the Constitution. (ii) If in a given case the temporary Government servant is able to show that the simple order of termination of service in accordance with the of appointment or service rules was actuated by improper motive or on charge of unfair discrimination specifying the facts in that regard and those facts are either not controverted or stand proved, then that simple order of termination of services may be quashed by a Court of law even if he was the junior most. Where the plantiff”s case was on the ground that since persons junior to him were kept in service on the abolition of the post, the order of termination was arbitrary and violative of Article 16 of the Constitution but he never pleaded any other ground of unfair indiscrimination or improper motive for the termination of his services, it was held that his suit was liable to be dismissed. Union of India v. Prakash Lal, 1980 (2) SLR 596 (P&H). Division Bench of Patna High Court in Subhash Chandra Chaudhary and Jamuna Ram v. Bihar State Warehousing Corporation, 1980 (2) SLR 760, deduced the following principles:— (i) A temporary employee”s service can be dispensed with under the of contract of employment although his juniors may be retained if it can be shown that the juniors were not similarly placed as the person whose service has been dispensed with on of misconduct or inefficiency or since he was standing as a class by himself. (ii) In such cases (as above), however, it would be incumbent upon the authority to satisfy the Court that persons junior to the person, whose services have been terminated, do not stand at par with or have better service record than, the person impugning the order of termination. (iii) There can be no hard and fast rule nor any abstract proposition of law for the purpose of determining as to whether the order of termination is a termination simpliciter or by way of punishment. It would depend upon the facts and circumstances

254


[R . 11

of each case as to whether it can be deduced that the order of termination is by way of penalty or not. (iv) The motive behind the order of termination is not always germane or relevant for the purpose of determining as to whether an order innocuous in form can be dubbed as being an order of termination by way of punishment. Actually the substance and not merely the form of the order is relevant. See also Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 Ajaya Mohanty v. Union of India, 1981 (1) SCR 785: 1981 (2) SCR 681 1981 (1) SLJ 552; Dr. S.C. Kaushik v. Union of India, 1981 (1) SLR 214. 31. Termination of Service on Abolition of Post — Whether a post should be retained or abolished is essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the Court. It is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the service of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and consequent termination of the services of the incumbent of that post would not attract Art. 311. State of Haryana v. Des Raj, 1976 (1) SLR 191: 1976 SLJ 222: AIR 1976 SC 1199: 1976(2) SCR 1034: 1976(2) SCC 844: 1976(1) SLR 191; Ali Mohd. v. Chairman, T.A.C., 1980 (3) SLR 546; J.P. Bansal v. State of Rajasthan, 2003 (3) SLR 50 SC. If that were to be so in the cases of a regular employee holding a permanent post, a fortiori, it must be the same in the case of a temporary employee holding a temporary post. Joshi Narsing Rao v. District and Sessions Judge, 1980 (3) SLR 161. The appellant was suspended and served with charge sheet. However before this a notice was served abolishing all posts in the deptt. Disciplinary proceedings did not proceed further and after about two years on the representation of the appellant, Government ordered that the disciplinary action against him would be treated as closed. Held, the appellant was employed in a deptt. which has since been abolished and with the abolition of the deptt., his claim to hold any post in the deptt. must fail. Gurdeep Singh v. Union of India, 1982(1) SCC 505: AIR 1982 SC 1176: 1982 Lab IC 1489: 1982(2) LLJ 184: 1982(45) FLR 330: 1982(2) SLJ 380: 1982 SCC (Lab) 113: 1982 LS (SC) 54. It is no doubt true that Art. 38 and Art. 43 of the Constitution insist that the state should endeavour to find sufficient work for people so that they may put their capacity to work into economic use and earn a fairly good living. But these Articles do not mean that everybody should be provided with a job in the Civil Service of the State, and if a person is provided with one, he should not be asked to leave it even for a just cause. The question whether a person who ceases to be a Government servant according to law, should be rehabilitated by giving an alternative employment, as the law stands today, a matter of policy on which the Court has no voice. K. Rajindran v. State of

R . 11]


255

Tamil Nadu, AIR 1982 SC 1107: 1982(3) SCR 628: 1982(2) SCC 273: 1982 Lab IC 876: 1982 (1) SLJ 604: 1982 (2) SLR 196. 32. By Authority Subordinate to the Appointing Authority — The respondent was appointed and confirmed by the Chairman of the Board of Control. The Board of Control abolished the post. Chairman, Board of istration served the notice of termination on the respondent terminating his employment at the expiry of three months. Chairman of the Board of istration is under the control of the Board of Control which is a superior authority. The notice of termination was vitiated because it was issued by an authority which was subordinate to the authority which appointed the respondent. Union of India v. Vigian Bhushan Aggarwal, 1983 (1) SLJ 77. 33. Termination by Authority not Competent — Termination of services by a person who is not a competent authority is illegal. Madan Lal Datta v. State of Haryana, (1983) 1 SLR 548 (P & H). Under the rules made under the Punjab Agricultural Produce Market Act, it is the State Agricultural Marketing Board which is competent to terminate the services of its employees. Hence termination of services by the Secretary of the Board is not valid. A person whose services are illegally terminated is entitled to reinstatement and also to back wages. Balwant Singh v. State of Haryana, (1983) 1 SLR 273, 274, Paras 5 and 6 (P&H). 34. On Overall Assessment of Service Record — Termination of service on an overall assessment of service record, when it is found that the temporary Government servant is not fit to be confirmed in service, does not amount to punishment of dismissal or removal under Art. 311. State of U. P. v. Tilak Singh, 1975 SLJ 94: 1975 Lab IC 1021: 1976 (1) SLR 129; R.K. Gupta v. State of U.P., 1977 (2) SLR 78. Merely because the adverse remarks have been communicated and the adverse remarks related to indiscipline and quarrelsome nature of the petitioner, it cannot be contended that the termination was by way of punishment. M. Rahtinavelu v. R.C. Khanna, 1980 (2) SLR 38. 35. Services no Longer Required — The services of petitioner were terminated as these were no longer required. Services were not terminated by way of punishment. Provisions of Art. 311 not attracted (as per Chet Ram Thakur, J). Roop Lal v. State, 1972 Simla LJ 387: AIR 1973 HP 14; Malti Heera v. State of Punjab, 1973 SLJ 416: 1973 (1) SLR 769; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC 684: 1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28; State of Maharashtra v. V.G. Koppar, AIR 1981 Bom 131; Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108: (1980) 2 SCJ 179. Termination of services on mere involvement in a criminal case would be too hazardous and slander a consideration which can justify such a decision. Pradyuman Singh Indrasinh v. State of Gujarat, 1982 (2) SLR 650: 1983 Lab IC 123. See also Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997 (1) SLR 270 (SC).

256


[R . 11

36. With Stigma — Where the impugned order while terminating the services of the petitioner has described him as “at present under suspension”, on the face of it, the impugned order leaves the stigma on the petitioner that he is a suspended officer, and any future employer may reasonably think that the petitioner must have been suspended in service on some serious allegations and may refuse employment to the petitioner on that ground alone. The impugned order, though ed under Rule 5(1) of the Temporary Service Rules, 1965, carried an indelible stigma and order held violative of Art. 311(2) of the Constitution. N.B.Chakraborty v. Union of India, AIR 1970 A&N 98. A temporary Government servant is entitled to the protection under Art. 311(2) of Constitution where the termination of his service involves a stigma. Comm Commanding, Southern Naval Area, Cochin v. V.N. Rajan, AIR 1981 SC 965: 1981(3) SCR 213: 1981(2) SCC 663: 1981 (1) SLR 656: 1981 (2) SLJ 48: (1981) 2 SCJ 85. 37. Without Stigma — Appellant was a temporary Government servant and was not in quasi-permanent service. His services were terminated without any stigma. Termination does not amount to punishment. Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828; Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158: 1967(3) SCR 848: 1967 SLR 582; Mohd. Sharif v. State of J & K, AIR 1970 J&K 156; Dr. B.K. Gupta v. Union of India, 1978 SLJ 277: 1978 (1) SLR 312: Commodore Commanding, Southern Naval Area v. V.N. Rajan, AIR 1981 SC 965: 1981(3) SCR 165: 1981(2) SCC 636: 1981 (1) SLR 656: 1981 (2) SLJ 48: (1981) 2 SCJ 85. 38. Service Terminated without Asg Cause, Motive Behind is Irrelevant — When the services of a temporary servant are terminated without asg any cause and under the rules, real motive behind termination is irrelevant. State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689; Bairagi Ram v. State of U.P., AIR 1966 All 92; Dhananjai Singh v. State of Bihar, AIR 1967 Pat 404; State of Punjab v. Sukhraj Bahadur, AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701: 1968 SLR 701; Malti Heera v. State of Punjab, 1973 SLJ 416. Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influenced the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment. Oil and Natural Gas Commission v. Dr. Md. S. Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 SLJ 591: 1980 (2) SLR 792; Union of India v. P.S. Bhat, (1981) 2 SCJ 165: 1981 (1) SLJ 213 (SC): 1981 (1) SLR 370. 39. Reason, if Assigned must be Valid — The Government can terminate the services of a temporary employee by giving him one month”s notice without asg any reason but where reason is assigned, it must be shown to be a valid reason. Jagdish Chand Pant v. State of U.P., 1973 SLJ 451: 1974 (2) SLR 208. See also Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC). 40. At the Request of Civil Servant — We know of no principle of law which prohibits termination of service of a Government servant by the Government at the

R . 11]


257

Government servants” request. Mohd. Kutubuddin v. State of A.P., (1969) II SCWR 856: 1969 SLR 819. 41. By Consent — It was open to an employer to terminate the services of the employee by mutual consent. For a termination of service by mutual consent, neither the provisions of Article 311 nor the principles of natural justice are attracted. Mohd. Kutubuddin v. State of A.P., (1969) II SCWR 856: 1969 SLR 819. 42. For Misconduct, Negligence or as Penalty — The services of a permanent or temporary Government servant or of an employee on contract cannot be terminated for misconduct, negligence or as penalty unless prescribed procedure is followed. Madan Gopal v. State of Punjab, AIR 1963 SC 531: 1963(3) SCR 716: 1964(1) LLJ 68: (1963) 2 SCJ 185; P.L. Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217: 1958(1) LLJ 544; Principal, Medical College v. M.J. Vincent, AIR 1970 Mad 424; Ananta Charan Mahapatra v. Inspector of Post Offices, AIR 1980 Orissa 165 (FB); State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 (2) SLR 527: 1979 SLJ 621; Ajaya Mohanty v. Union of India, 1981 (1) SLJ 552: 1981 (1) SLR 785; Murlidhar Yashwant Mayenkar v. Union of India, 1982 (1) SLJ 699: 1982 (2) SLR 483: 1983 Lab IC 62. For termination of temporary teacher for misconduct see Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC). 43. For not ing Prescribed Examination — Government is entitled to terminate the services of temporary employee for not ing the prescribed examination. State of Rajasthan v. Fateh Chand, AIR 1970 SC 1099: 1970 Lab IC 870: 1970 SLR 55, however, see Tripta Dhir v. State of Punjab, 1982 (2) SLR 258. 44. For not being Selected by Selection Committee or Public Service Commission — An official who has acquired experience but has not been successful at the selection is not to be replaced by a fresh recruit. While terminating the services of those not selected the principle of “last come first go” be applied to those who are similarly situated and the services of the junior must be terminated first. Dr. S.C. Kaushik v. Union of India, 1981 (1) SLR 214. 45. On Resignation — Acceptance of resignation does not amount to termination of appointment for any misconduct or as a measure of penalty. Raj Kumar v. Union of India, (1968) II SCWR 914: AIR 1969 SC 180: 1968(3) SCR 857: 1968 SLR 730: 1969 Lab IC 310. 46. After Preliminary Enquiry Held Ex Parte — When preliminary enquiry is held against a temporary civil servant ex parte and his services are terminated without mention of any stigma, the order is simple order of discharge and Article 311 (2) will not apply. Madan Gopal v. State of Punjab, AIR 1963 SC 531: 1963(3) SCR 716: (1963) 2 SCJ 185; Champak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1854: 1964(5) SCR 190; State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701; Dr. Gopal Krishna K. Salekar v. Union of India, 1970 SLR 705: 1970 Lab IC 361; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC 684: 1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28, Madan Lal v. State of Punjab, 1981 (3) SLR 524.

258


[R . 11

47. After Preliminary Enquiry : Notice to Show Cause not Required — No charge sheet served on the delinquent officer but an enquiry was made in the matter. Service terminated. Officer was not entitled to reasonable opportunity to show cause against the termination within meaning of Article 311 (2). State of U.P. v. Abdul Khaliq, (1962) I SCWR 1086: 1969 SLR 458, See also Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 SC. 48. After Enquiry to Ascertain Whether Fit for Service — An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311. State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701: 1968 Cur LJ 687; Ram Gopal Chaturvedi v. State of M.P., (1969) I SCWR 1115: AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: 1969 SLR 429; Yesh Paul Vohra v. Union of India, 1969 Cur LJ 109: 1969 SLR 160; Bishan Lal Gupta v. State of Haryana, AIR 1978 SC 363: 1978(2) SCR 513: 1978(1) SCC 202: 1978 SLJ 220: 1978 (1) SLR 404; Oil and Natural Gas Commission v. Dr. Md. S. Iskandar Ali, AIR 1980 SC 1242: 1980(3) SCR 603: 1980(3) SCC 428: 1980 Lab IC 698: 1980 (2) SLR 792: 1980 SLJ 591; Shefali Sarkar v. Divisional Engineer, Telegraphs, 1981 (2) SLR 284. 49. After Full Scale Enquiry — If there be full-scale departmental enquiry i.e. an enquiry officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of Article 311. State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089: 1968(3) SCR 234: 1968 SLR 701: 1968 Cur LJ 687. 50. Enquiry Withdrawn, Service Terminated — Enquiry held. Enquiry officer submitted report. Government ordered withdrawal of enquiry and terminated services. Order cannot be said by way of punishment. State of Punjab v. Parsa Singh Teji, AIR 1967 Punj 138; Yeshpaul Vohra v. Union of India, 1969 Cur LJ 109: 1969 SLR 160; Prasan Kumar Sadangi v. State of Orissa, 1974 SLJ 667. See also Avinash Nagra v. Navodaya Vidyalaya Samiti, 1997(2) SCC 534: 1996(10) JT 461: 1996(8) AD(Delhi) 529: 1997(1) SLR 270: 1997 (1) SLR 270 (SC); Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 SC. Where the charge sheet was withdrawn after about two years and on the same date a fresh charge-sheet was served which was withdrawn after more than five years and two months after the withdrawal of charge-sheet. Service of the petitioner was terminated. Held, from the sequence of events, one is reasonably entitled to draw the conclusion that the petitioner”s services were terminated on the ground of misconduct although the charges had been formally withdrawn. Dasarathi Lal Sharma v. Union of India, 1977 (1) SLR 672. 51. Enquiry Quashed, Subsequently Service Terminated — Enquiry quashed as incompetent. Subsequently services were terminated as “no more required”. Not proved by evidence that the impugned order was intended by way of punishment. Termination upheld. Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 (2) SLR 108: 1980 SLJ 711.

R . 11]


259

52. Without Formal Enquiry — Order of termination was preceded by an informal ex parte inquiry against temporary Government servant”s conduct. Order not ed by way of punishment and the provisions of Art. 311 were not attracted. Champak Lal Chimanlal Shah v. Union of India, AIR 1964 SC 1854: (1964) 5 SCR 190; Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: (1969) 1 SCWR 1115; Malti Heera (Smt) v. State of Punjab, 1973 SLJ 416: 1973 (1) SLR 769; State of U.P. v. Bhoop Singh Verma, AIR 1979 SC 684: 1979(2) SCR 1126: 1979(2) SCC 111: 1979 (2) SLR 28. The petitioner submitted reply to charge sheet and there after his services were terminated. Order quashed, the order being without following procedure and the provisions of Art. 311. Balraj Kumar Murria v. State of Punjab, 1982 (1) SLR 355. 53. When under Suspension, Without Enquiry — If a Government servant is suspended and his services are terminated without holding any inquiry against him, such termination would amount to punishment which will attract the provisions of Art. 311. Union of India v. Gian Singh Kadian, 1970 DLT 293: AIR 1970 Delhi 185: 1970 SLR 563 But suspension itself is not indicative of any stigma or predetermined motive for termination. Dhananjay v. Chief Executive officer, Zilla Parishad, Jalna, 2003 (2) SLR 298 SC. 54. Without Show Cause Notice Under Rules — Appellant was a temporary Government servant. The Government had the right to terminate his services under rules without issuing any notice to the appellant to show cause against the proposed action. Ram Gopal Chaturvedi v. State of M.P., (1969) 1 SCWR 1115: AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: 1969 SLR 429; Shefali Sarkar v. Divisional Engineer, Telegraphs, 1981 (2) SLR 284. 55. Without Show Cause Notice Under of Appointment — In the case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice. A temporary Government servant does not become a permanent Government servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. Madhya Pradesh Hasta Shilpa Vikas Nagam Ltd. v. Devendra Kumar Jain, 1994 Supp (6) SCR 344: 1995(1) SCC 638: 1995(1) SLR 272: 1995(29) ATC 159: 1995(2) SLJ 70: 1995 Lab IC 1365: 1995(1) LLN 185: 1995(70) FLR 330. Where the respondent itted that his appointment was subjected to the condition that his services were terminable without any notice and the impugned order of termination was not ed by way of any punishment, it was held that he cannot invoke the provisions of Art. 311. State of Nagaland v. G. Vasantha, AIR 1970 SC 537: 1970 Lab IC 419: 1970 SLR 637; State of Assam v. Ranjit Chakravarti, 1975 Lab IC 116. 56. Termination of Service on Adverse Police Report — Termination of service on certain vague unconfirmed confidential police reports is illegal and void. Hardit Singh v. State of Punjab, 1977 (2) SLR 749 (P&H). The appointment of the respondent was “subject to verification of his character and antecedents by police.” The

260


[R . 11

report of police verification merely stated that the respondent was unsuitable for employment under the Government. The respondent protested that there was no basis for such report. Held, in the facts and circumstances of this case, no prejudice would be caused to the State authorities if the gist or the extract of the report so far as the same is against the respondent is made known, and he is given an opportunity to make representation, if any, against such report on the basis of subjective facts and data. State of West Bengal v. Madan Mohan Bag, 1977 SLJ 677; Kalluri Vasayya v. Supdt. of Post Offices, 1980 (2) SLR 433: 1982 Lab IC 1143. Also see Rules 8 and 9, Note 62. 57. Termination of Service Forthwith : Whether Notice to be Issued with the Order of Pay — The rule does not say that the pay should be given in cash or cheque at the time of the notice is issued. Supreme Court decisions in Senior Superintendent, R.M.S. v. R.V.Gopinath, AIR 1972 SC 1487: 1972(3) SCR 530: 1973(3) SCC 867: (1973) 1 SCJ 28: 1972 SLR 390; Raj Kumar v. Union of India, 1975 (1) SLR 1: 1975 SLJ 86 no longer good law in view of amendment to proviso to Rule 5(1) of CCS (Temporary Service) Rules, 1965. Raj Kumar v. Union of India, AIR 1975 SC 1116: 1975(3) SCR 963: 1975(4) SCC 13: 1975 SLJ 615: 1975 (1) SLR 774: 1975 Lab IC 669; Ramesh Chandra Singh v. Union of India, 1981 (2) SLR 267. 58. Notice sent by ed Post, Avoiding of — Notice terminating service was sent to officer by ed post at the leave address but the service was deliberately avoided. It may be treated effective service. Nilendu Bhusan Chakravarty v. Union of India, 1975 (1) SLR 149. 59. Termination of Service by Way of Punishment — Services of a temporary servant cannot be terminated by way of punishment without complying with the provisions of Art. 311. Union of India v. P.K. More, AIR 1962 SC 630: 1961(2) LLJ 427: 1961(3) FLR 323: 1961-62(21) FJR 5; Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711: 1963(1) SCR 416: 1963(1) LLJ 671; Malti Heera v. State of Punjab, 1973 SLJ 416. In Nepal Singh v. State of U.P., AIR 1980 SC 1459: 1980(3) SCR 613: 1980(3) SCC 288: 1980 Lab IC 747: 1980 SLJ 711: 1980 (2) SLR 108, R.S. Pathak, J. observed: “It is now well settled law that an order terminating the service of a temporary Government servant and ex facie innocuous is that it does not cast any stigma on the Government servant or visits him with penal consequences must be regarded as effecting a termination simpliciter, but if it is discovered on the basis of material adduced that although innocent in its the order was ed in fact with a view to punishing the Government servant, it is a punitive order which can be ed only after complying with Art. 311(2) of the Constitution. The scope of the enquiry called for in such a case has been outlined by one of us in State of Maharashtra v. Veerappa R. Saboji, AIR 1980 SC 42: 1980(1) SCR 551: 1979(4) SCC 466: 1979 Lab IC 1389: 1979 (2) SLR 527: 1979 SLJ 621. But the question which calls for determination in all such cases is whether the facts satisfy the criterion repeatedly laid down by this Court that an order is not ed by way of punishment, and is merely an order of termination simpliciter, if the material against the Government servant on which the superior authority has acted, constitutes the motive and not the foundation for the order. The

R . 11]


261

application of the test is not always easy. In each case it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the Government servant or, having regard to his character, conduct and suitability in relation to the post held by him. It was intended simply to terminate his service. The function of the Court is to discover the nature of the order by attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order.” See also, Ajaya Mohanty v. Union of India, 1981 (1) SLJ 552: 1981 (1) SLR 785: 1981 (2) SLR 681; Murlidhar Yeshwant Mayenkar v. Union of India, 1983 Lab IC 62: 1982 (1) SLJ 699: 1982 (2) SLR 482; Padam Prasad Sharma v. S.N.T., 1982 (1) SLJ 431. 60. When Dismissal — Whether termination amounts to dismissal depends on the circumstances and the facts of each case. Substance of order has to be looked into. Ved Prakash Vohra v. State of Punjab, AIR 1965 Punj 28; Jagdish Mitter v. Union of India, AIR 1964 SC 449: 1964(1) LLJ 418; Dinkar Keshav Bedekar v. State of Maharashtra, 1970 Lab IC 139 (Bombay). A civil servant was put off duty on the ground that allegations of misconduct against him were under inquiry. Hardly six weeks thereafter his services were terminated. The order of termination did not specify the ground upon which the order was based and prima facie it was innocuous one. The impugned order of termination virtually amounted to dismissal and could not have been ed in the absence of an appropriate disciplinary proceeding. Ananta Charan Mahapatra v. Inspector of Post Offices, AIR 1980 Orissa 165 (FB); Padam Prasad Sharma v. S.N.T., 1982 (1) SLJ 431. 61. When Appointment Coterminous with Continuance of Post — State had no power to terminate the services of respondent when post itself was continuing. If any action by way of disciplinary proceeding was being taken, then State should have complied with Art. 311(2) of the Constitution. State of Haryana v. Rajender Sareen, AIR 1972 SC 1004: 1972(1) SCC 267: 1972 SLR 112: 1972 Lab IC 546: (1972) 2 SCJ 604. When employee is appointed on a project and for the duration of that project, the question of his services continuing automatically thereafter do not arise. IRCON International Ltd. v. Daya Shankar, AIR 2002 SC 2404: 2002(9) SCC 691: 2001(10) JT 360: 2002 AIRSCW 2620: 2002 Lab IC 2319: 2002(1) LLJ 548: 2002(3) ESC 16: 2002(1) SLR 563 (SC). When the posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration come to an end on of the need for the project itself having come to an end either because the project was fulfilled or had to be abandoned wholly or partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have the funds available for the purpose. Rajendra v. State of Rajasthan, AIR 1999 SC 923: 1999(2) SCC 317: 1999(1) JT 278: 1999(1) SLR 636 (SC). Therefore termination on completion of project itself when contractual employment and the posts came to an end is not liable to challenge. Surendra Kumar Sharma v. Vikas Adhikari, 2003 (3) SLR 601 SC.

262


[R . 11

62. With Retrospective Effect — Order discharging the services from the date of order with super-added direction that the order should operate retrospectively as from anterior date. Even if the super-added part is invalid, it does not affect the other part. Gujarat Mineral Development Corp. v. P.H. Brahmbhatt, 1974 SLJ 272. An order of termination of service, as is well known, takes effect from the date of communication. The petitioner”s services could not have been terminated after he had superannuated from his service. Kanti Bhusan Naha v. W.B.S.E., 1999(1) SLR 308 Cal. 63. Termination of Service of Employee on Work Charged Establishment for Misconduct — The termination of service of temporary employee on work-charged establishment for misconduct without following the procedure laid down in Part VI of CCS (CCA) Rules and complying with the provisions of Art. 311 of the Constitution is invalid and liable to be quashed. Murlidhar Yeshwant Mayenkar v. Union of India, 1982 (1) SLJ 699: 1982 (2) SLR 482: 1983 Lab IC 62. 64. Termination of Service of Employee on Contract, as Penalty —Unless a contrary intention appears from the contract, a power to appoint should include a power to terminate the appointment, including termination of the person appointed by his compulsory retirement in accordance with the and conditions of his service. The fundamental principle underlies Section 16 of the General Clauses Act which reads as under: 16. Power to appoint to include power to suspend or dismiss.—Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any authority in exercise of that power. Relying on this provision it has been held that the power to appoint carries with it the power to terminate the appointment. S.R. Tiwari v. District Board, Agra, 1964(3) SCR 55: AIR 1964 SC 1680: 1964(2) SCJ 300: 1966(13) FLR 104; State of Tamil Nadu v. M.N. Sundarajan, 1980 (3) SLR 451: 1981(1) SLJ 36. But the services of an employee on contract cannot be terminated for misconduct, negligence or as penalty unless prescribed procedure is followed. Madan Gopal v. State of Punjab, AIR 1963 SC 531: (1963) 3 SCR 716: 1964(1) LLJ 68; State of Bihar v. Gopi Kishore Prasad, AIR 1960 SC 689: 1960(1) LLJ 577: 1959-60(17) FJR 390. The cases of termination/dismissal of a servant are put in three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach in such a case is enforced by a suit for wrongful dismissal and damages. Breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment. The second type of cases of master and servant arises under Industrial Law, under which a servant wrongfully dismissed, may be reinstated under the circumstances provided therein. The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute. Courts in appropriate cases have declared the dismissal invalid and that the employee continues to be in

R . 11]


263

service. See Monmatha Nath Vyakaram Sastri v. State of Meghalaya, 1982 (2) SLJ 142; U.P.State Warehousing Corporation v. Chandra Kiran Tyagi, AIR 1970 SC 1244: 1970(2) SCR 250: 1969(2) SCC 838: 1969 SLR 799: 1970 Lab IC 1044; Arya Vidya Sabha Kashi v. Krishan Kumar Srivastava, AIR 1976 SC 1073: 1976(3) SCC 83: 1976 Lab IC 698; Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain, AIR 1976 SC 888: 1976(2) SCR 1006: 1976(2) SCC 58: 1976(1) SLR 213: 1976 Lab IC 576; Smt. J. Tiwari v. Smt. Jwala Devi Vidya Mandir, AIR 1981 SC 122: 1979(4) SCC 160: 1979(1) SLR 614. 65. Application of Article 311 where Service Terminated in Pursuance of Contract or Rules — The statutory protection afforded under Art. 311 is only against dismissal or removal from service and not in a case where the services are terminated in pursuance of contract of service or the rules. Ashok Kumar Bhatia v. Union of India, 1973 SLJ 273; Malti Heera (Smt) v. State of Punjab, 1973 SLJ 416: 1973 (1) SLR 769; State of U.P. v. Tilak Singh, 1975 SLJ 94: 1976 (1) SLR 129: 1975 Lab IC 1021. The appointment either on probation or on officiating basis is from the very nature of such employment itself of a very transitory character and in the absence of any special contract or specific rule regulating the conditions of service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. State of Assam v. Biraja Mohan Deb, 1969(II) SCWR 583; Purshottam Lal Dhingra v. Union of India, 1958 SCJ 217: 1958 SCR 828: AIR 1958 SC 36. Where the appointment was on contractual basis and services were terminated on the expiry of period of contract, it was held that the termination was neither the retrenchment nor was illegal. District Animal Husbandry Officer v. Judge, Labour Court, 2003 (1) SLR 786 Raj; Termination after completion of project is also held to valid. Surendra Kumar Sharma v. Vikas Adhikari, 2003 (3) SLR 601 SC. 66. Appointment under Agreement : Appointee Holding Civil Post : Termination of Service by Notice under Agreement: Void — (i) Respondent was appointed under an agreement and was to be allowed to remain in service upto the age of 55 years. The agreement provided that services will be liable to be terminated on six month”s notice on either side. Held, the respondent was holding a civil post within the meaning of Art. 311(1) of the Constitution. Termination of service on six month”s notice would not amount to merely termination of service but removal from service within the meaning of Art. 311(1). Notice of termination without complying with the provisions of Art. 311(2) was void. Union of India v. M.A. Chaudhary, 1975 SLJ 1: 1975 (1) SLR 300. (ii) In Raja Zutshi v. Union of India, 1975 SLJ 4: 1975 (1) SLR 311, it was held that where an officer under contract service holds a civil post his service cannot be terminated in violation of Art. 311. 67. Before Expiry of Fixed Period — (i) When the appointment to a temporary post is for a definite period, services cannot be terminated by one month”s notice. Rajendra Sareen v. State of Haryana, AIR 1970 Delhi 132; Parshottam Lal

264


[R . 11

Dhingra v. Union of India, AIR 1958 SC 36: 1958 SCR 828: 1958 SCJ 217: 1958(1) LLJ 544; see other views in State of U.P. v. Kedar Nath Pande, 1970 Lab IC 131. (ii) Where a person is appointed in temporary or officiating capacity for fixed term under the of employment and there is nothing in the said order permitting premature termination of his appointment before the expiry of the period fixed in that order, he acquired a right to hold the post till the expiry of that period, and his services cannot be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2) of the Constitution. Prasanta Mohapatra v. State of Orissa, AIR 1969 Orissa 61; Suman Kumar v. State of H.P., 1975 Lab IC 1275. 68. Termination of Tenure Post before Full Period — Employment can be terminated before the employee completes full period of his appointment. The relation between person appointed and the employer being contractual, termination of relationship will not entitle the servant to a declaration that his employment had not been validly determined. Dr.Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 SC 292: 1968(1) SCR 434: 1968 Lab IC 232: 1968 SLR 119: (1968) 2 SCJ 171: (1968) 1 SCWR 183; A.Francis v. Municipal Councillors of Kualalumpur, (1962) 3 All ER 633; Satish Chandra v. Union of India, AIR 1953 SC 250: 1953 SCR 655. 69. Termination of Service of an Employee of Government Company — To an employee of such a company or corporation, Art. 311 of Constitution does not apply in as much as he does not hold a civil post under the Government. The employee cannot make any grievance by challenging the termination order on the ground that since it was a penalty, he was entitled to an opportunity. The istrative control vests in the Company and it is the Company which has the power to frame Rules and Regulations regarding the employment of its employees. Articles of a Company are the internal regulations of the Company. They cannot be enforced by means of a writ under Art. 226 of the Constitution. Raja Harendra Singh v. Union of India, 1982 Lab IC 1733. The services of a permanent employee, whether employed by the Government, of Govt. company or Govt. instrumentality or Statutory Corporations or any other “Authority” within the meaning of Article 12, cannot be terminated abruptly and arbitrarily, either by giving him a month”s or three month”s notice or pay in lieu thereof or even without notice, notwithstanding that there may be a stipulation to that effect either in the contract of service or in the Certified Standing Orders. Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, 1986 (2) SCR 278: 1986 (3) SCC 156: AIR 1986 SC 1571: 1986 Lab IC 1312: 1986(3) Comp LJ 1: 1986(2) CCC 335: 1986(2) LLJ 171: 1986(2) LLN 382: 1986(53) FLR 523: 1986(2) SLJ 320: 1986(69) FJR 171: 1986(2) SLR 345: 1986 ATC 103: 1986 SCC (L&S) 429: 1986(2) Cur LR 322: 1986(2) SCJ 201; Bharat Coking Coal Ltd. v. Babulal, 1996(10) SCC 295: 1996 Supp (4) SCR 289: 1996(3) SLJ 106: 1996(5) SLR 319: 1997(2) LLJ 926; Uptron India Ltd. v. Shammi Bhan, 1998(1) SCR 719: 1998(6) SCC 538: AIR 1998 SC 1681: 1998(2) SLR 544: 1998(1) LLJ 1165: 1998(79) FLR 233: 1998(3) SLJ 223: 1998 Lab IC 1545: 1998(2) LLN 959: 1998(92) FJR 700.

R . 11]


265

See also Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002(3) SCR 100: 2002(5) SCC 111: 2002(3) SCJ 342: 2002(3) SLR 433 SC. 70. Termination of Service under Article 310 (1) — Termination of service under Art.310(1) of the Constitution is not subject to the rules framed in virtue of Art. 309 of the Constitution. Mohammad Akhtar v. Union of India, 1967 ALJ 645. The doctrine of pleasure contained in Art. 310 is subject to Art. 311, but not to Rules or Acts made under Art. 309 and where the protection of Art. 311 does not apply, the service of a Government servant can be terminated at any time without holding an enquiry which may be prescribed by the Rules or Acts made under Art. 309. The disciplinary proceedings under the present rule of 1965 are incumbent or obligatory in case of Civilians in Defence Forces as such servants are not entitled to the protection under Art. 311. AIR 1976 SC 2433: 1977(1) SCR 87: 1976(3) SCC 677: 1977 SLJ 547: 1976 (2) SLR 519; O.Ramachandra Reddy v. Director, D.R.D.L., 1980 (1) SLR 490; Hazara Singh v. Union of India, 1982 (1) SLR 623; V.Y. Thomas v. Commandant, A.D.C. Centre, 1982 Lab IC 632: 1982 (2) SLR 39. Army defends the country and its frontiers. It is entrusted with the task of protecting against foreign invasion and preserving the national independence. The arduous nature of duties, the task they have to perform in emergent situations and the unknown lands and unknown situations wherein they have to function demand an exceptionally high standard of behaviour and discipline compared to their counterparts in civil services. That is why the military people command the respect of the masses. Such factors taken together demand the military services being treated as a class apart and a different system of justice - military justice - being devised for them. Article 33 empowers the Parliament to restrict or abrogate fundamental rights in their application to the of the armed force so as to ensure the proper discharge of their duties and the maintenance of discipline among them. Right to file special leave to appeal before the Supreme Court and power of superintendence vesting in the High Courts do not extend over judgment, determination, sentence or order ed or made by any Court or Tribunal dealing with armed forces. of the defence services hold office during pleasure of the President under Article 310 but they are not entitled to the protection offered by Article 311. The principles of interpretation of statutes which apply to any other statute also apply to the legislation dealing with defence services; however, the considerations of the security of the State and enforcement of a high degree of discipline additionally intervene and have to be assigned weightage while dealing with any expression needing to be defined or any provision needing to be interpreted. Union of India v. Harjeet Singh Sandhu, 2001(2) SCR 1127: 2001(5) SCC 593: AIR 2001 SC 1772: 2002(1) SLJ 1: 2001 Lab IC 1707. CCS (CCA) Rules have no application on defence personnel as the defence personnel hold their office subject to the pleasure of the President and the rules framed under proviso to Article 309 are subject to the doctrine of pleasure enshrined under Article 310. Union of India v. S.B. Mishra, AIR 1996 SC 613: 1995 Supp (2) SCR 704: 1995(5) SCC 657: 1995(5) SLR 201: 1996 Lab IC 619: 1996(1) SLJ 94. Civilian employees working in defence service are not entitled to the protection under CCS (CCA) rules and are subject to unfettered exercise of pleasure of the

266


[R. 12

President or the Governor as the case may be. Director General of Ordnance Services v. P.N. Malhotra, AIR 1995 SC 1109: 1995(1) SCR 676: 1995 Supp (3) SCC 226: 1995(1) SLR 720: 1995(30) ATC 630: 1995(2) SLJ 183: 1995 Lab IC 1359: 1995(2) LLJ 754: 1996(1) LLN 292 71. Government Servants who Belong to Scheduled Castes and Scheduled Tribes have no Special Protection Regarding Termination of Service — The Constitution guarantees special concession to the of the Scheduled Castes and Tribes in the matter of recruitment but no constitutional provision or any other law appears to provide special protection regarding termination of services of Government servants belonging to Scheduled Castes and Scheduled Tribes. Ramanand Ramnarayan Raidas v. State of M.P., 1979 (3) SLR 671. DISCIPLINARY AUTHORITIES R. 12

12. Disciplinary Authorities — (1) The President may impose any of the penalties specified in rule 11 on any Government servant. (2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penalties specified in Rule 11 may be imposed on : (a) a member of a Central Civil Service other than the General Central Service, by the appointing authority or the authority specified in the Schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President; (b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf. (3) Subject to the provisions of sub-rule (4), the power to impose any of the penalties specified in Rule 11 may also be exercised, in the case of a member of a Central Civil Service, Group C (Other than the Central Secretariat Clerical Service), or a Central Civil Service, Group D:— (a) if he is serving in a Ministry or Department of the Government of India, by the Secretary to the Government of India, in that Ministry or Department, or

R. 12]


267

(b) if he is serving in any other office, by the head of that office, except where the head of that office is lower in rank than the authority competent to impose the penalty under sub-rule (2). 4. Notwithstanding anything contained in this rule:— (a) except where the penalty specified in clause (v) or clause (vi) of Rule 11 is imposed by the Comptroller and Auditor-General on a member of the Indian Audit and s Service, no penalty specified in clause (v) to (ix) of that rule shall be imposed by any authority subordinate to the appointing authority; (b) where a Government servant who is a member of a service other than the General Central Service or who has been substantively appointed to any civil post in the General Central Service, is temporarily appointed to any other service or post, the authority competent to impose on such Government servant any of the penalties specified in clauses (v) to (ix) of Rule 11 shall not impose any such penalties unless it has consulted such authority, not being an authority subordinate to it, as would have been competent under sub-rule (2) to impose on the Government servant any of the said penalties had he not been appointed to such other Service or post; (c) in respect of a probationer undergoing training at the Lal Bahadur Shastri National Academy of istration, the Director of the said Academy shall be the authority competent to impose on such probationer any of the penalties specified in clauses (i) and (iii) of Rule 11 after observing the procedure laid down in Rule 16. Explanation 1 — For the purposes of clause (c), “probationer” means a person appointed to a Central Civil Service on probation. Explanation 2 — Where a Government servant belonging to a Service or holding a Central Civil post of any Group, is promoted, whether on probation or temporarily to the Service or Central Civil post of the next higher Group, he shall be deemed for the purposes of this Rule to belong to the Service of, or hold the Central Civil post of, such higher Group.

268


[R. 12


Power of appointment carries with power to impose penalties ..................................... 269

2.

Authority who can dismiss or remove from service ...................................................... 269

3.

Authority of head of office ............................................................................................. 270

4.

Appointing authority can not delegate its power of dismissal ....................................... 271

5.

Delegation of power to remove an employee ................................................................ 271

6.

Officer-in-charge of current duties ................................................................................ 272

7.

Rule 12 (3), supplementary to Rule 12 (2) .................................................................... 272

8.

Government can confer power of dismissal on other officer ......................................... 272

9.

Dismissal or removal by authority subordinate to that by which he was appointed ...... 272

10. Provincial Government to make appointment but appointment made by Commandant General: Dismissal by Commandant General not void .................................................. 273 11. Power of authority subordinate to appointing authority ................................................ 273 12. Authority subordinate— Subordination is of rank and not of functions ........................ 273 13. Punishment by Delegate Subordinate in Rank ............................................................... 274 14. Illustrative cases — (1) Commissioner Appointing Authority : Revision by Deputy Commissioner Illegal . .274 (2) General Manager Appointing Authority : Removal by Asst. General Manager Illegal ............................................................................................................................. 274 (3) Chief Electrical Engineer Appointing Authority : Removal by Divisional Assistant Engineer : Unconstitutional ............................................................................................ 274 (4) Director of Industries Appointed Instructor : Removal by Principal of Institute ...... 275 (5) Director of Health Service Being Appointing Authority : Removal by Civil Surgeon (D.M.P.) Set Aside ........................................................................................... 275 (6) Lekhpal under U.P. Lekhpal Service Rules, 1958 .................................................... 275 (7) Superintendent of Police ........................................................................................... 275 (8) Inspector General under Central Reserve Police Force Rules, 1955......................... 276 (9) T.N. Police Subordinate Services (Discipline and Control) Rules, 1955 .................. 276 15. Exercise of power of President and Governor to dismiss public servant ....................... 276 16. Order under Article 77 or Article 166: Validity cannot be questioned .......................... 276 17. Promotion by higher authority, dismissal by authority lower in rank to promoting authority ........................................................................................................................ 277 18. Order by authority superior to punishing authority ....................................................... 277 19. Order of officer superior to appointing authority .......................................................... 278 20. Disciplinary jurisdiction over of State Judicial Service ................................. 278 21. Superintendent of Police or District Superintendent of Police ...................................... 279 22. Superintendent of Police not subordinate to Senior Superintendent of Police ............... 279

R. 12]


269

23. Successor disciplinary authority — change of opinion ................................................. 279

1. Power of Appointment Carries with Power to Impose Penalties — The power of appointment carries with power to dismiss, discharge, remove an employee or to terminate his services in accordance with the conditions of employment. Dr. Bool Chand v. Chancellor, Kurukeshtra University, (1968) 2 SCJ 171: (1968) I SCWR 183: AIR 1968 SC 292: 1968(1) SCR 434: 1968 Lab IC 232: 1968 SLR 119; S.R. Tewari v. District Board, Agra, (1964) 3 SCR 55: AIR 1964 SC 1680: 1964(3) SCR 55: 1964(2) SCJ 300; Lekhraj Sathramdas Lalvani v. N.M. Shah, (1965) II SCWR 885: AIR 1966 SC 334: 1966(1) SCR 120; P.G.I. v. Shamlal, 1974 SLJ 365: 1974 (2) SLR 814; Manager, Govt. Branch Press v. D.B. Belliappa, AIR 1979 SC 429: 1979(2) SCR 458: 1979(1) SCC 477: 1979 Lab IC 146: 1979 SLJ 233: 1979 (1) SLR 351; Krishna Kumar v. Divisional Assistant Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1979 SLJ 523: 1979 (2) SLR 291: (1980) 1 SCJ 183. See also M.P. Patrudu v. Controller General, Defence s, New Delhi, 1994 (1) SLR 219 (CAT Hyderabad). An order of reversion ed by authority subordinate to the appointing authority was held to be bad in law. V.R. Vishwanath Ramji Maandare v. Maharashtra State Road Transport Corporation, Bombay, 2001(1) SLR 480 (DB). Although Art. 311 of the Constitution does not speak as to who shall initiate the disciplinary proceedings but that can be provided and prescribed by the Rules. But if no Rules have been framed, saying as to who shall initiate the departmental proceedings, then on the basis of Art. 311 of the Constitution it cannot be urged that it is only the appointing authority and no officer subordinate to such authority can initiate the departmental proceeding. Registrar of Co-operative Societies v. F.X. Fernando, 1994(1) SCR 959: 1994(1) JT 666: 1994(2) SCC 746: 1994(27) ATC 188: 1994(1) SLJ 124: 1994(1) SLR 820: 1994(68) FLR 769: 1994(1) LLN 847: 1994(1) LLJ 819; Steel Authority of India v. R.K. Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT 379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57: 1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6) SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929; Additional Supdt. of Police v. T. Natarajan, 1998(9) JT 257: 1999(3) LLJ 1482: 2000(85) FLR 39. 2. Authority Who can Dismiss or Remove from Service — It is the appointing authority who has to apply its mind and decide for itself whether a particular Government employee should be dismissed or removed from service or not. The petitioner having been appointed by the State Government, it was only the said Government which could the order of his compulsory retirement. Balbir Singh v. State of Punjab, AIR 1970 Punj 459. Delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. Where the appellant was appointed by the Chief Electrical Engineer he could not be removed from service by the Divisional Engineer because the latter”s power to make appointments to certain posts had been

270


[R. 12

delegated to him. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. Krishna Kumar v. Divisional Assistant Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1979 (2) SLR 291: 1979 SLJ 523: (1980) 1 SCJ 183. Rule 12 permits the President to appoint an ad hoc disciplinary authority. T.K. Sajeeda Begum v. Union of India, (1990) 14 ATC 7 (Ernakulam). Where the employee is working in the operative department of the Railway, charge-sheet cannot be issued by an officer in the Commercial Department. M.L. Gupta v. Union of India, (1988) 6 SLR 505 (CAT Allahabad). As per rule 13(2), CCS (CC&A) Rules, a disciplinary authority competent to impose any of the minor penalties mentioned in Rule 11, CCS (CC&A) Rules may institute disciplinary proceedings against any Government servant for the imposition of any of the major penalties also notwithstanding the fact that such authority is not competent under the rules to impose such penalty. T.K. Sajeeda Begum v. Union of India, (1990) 14 ATC 7 (Ernakulam). Article 311 does not provide that a member of a civil service or a person holding a civil post either under the Union or a State cannot be dismissed or removed by an authority except the appointing authority. Held that there is no requirement that the authority which takes disciplinary action must continue to have the power of making appointment to the civil service or on a civil post under the Union or a State. It can be any other authority so long as it is not subordinate in rank or grade to the authority by which the delinquent Government servant was appointed. That is the only requirement of Article 311 and nothing more can be read into it. Jai Jai Ram v. Uttar Pradesh State Road Transport Corporation, AIR 1996 SC 2289: 1996(4) SCC 727: 1996(6) JT 463: 1996 SCC(L&S) 1071: 1996 Lab IC 2034: 1996(2) LLJ 729: 1996(3) SLJ 15: 1996(5) SLR 141: 1996(74) FLR 2016: 1996(2) LLN 465. On a reference to Rule 2(a) and Rule 9 of the Railway Servants (Discipline and Appeal) Rules, it was held that it would be impossible for the President to deal with all the disciplinary matters of the Government employees. Therefore, delegation of appointment power was made to the General Manager and disciplinary power was delegated to the Divisional Manager. The General Manager in not the delegator. Consequently, the doctrine that a delegator cannot further delegate his powers to the delegate has no application. As a result, it was held that the delegation of power to impose appropriate punishment is permissible. Union of India v. N.V. Phaneendran, 1995 Supp (3) SCR 141: 1995(6) SCC 45: 1995(31) ATC 431: 1995(5) SLR 260 3. Authority of head of office— For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head of the Office. As a result, the Head of Office, namely, the Assistant Manager is the competent authority to appoint. Once he is the competent authority to appoint, he is equally, the competent authority to impose the penalty. Himachal Road Transport Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997(9)

R. 12]


271

SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24. For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head of the Office. As a result, the Head of Office, namely, the Assistant Manager was held to be the competent authority to appoint. Once he is the competent authority to appoint, he is equally, the competent authority to impose the penalty. Himachal Road Transport Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24. 4. Appointing Authority Cannot Delegate its Power of Dismissal — (i) Appointing authority cannot delegate its power of removal or dismissal of a Government servant. Balbir Singh v. State of Punjab, AIR 1970 Punj 459. (ii) Where President or Governor is the appointing authority the decision of minister or officer under the rule of business is the decision of the President or the Governor. Where functions entrusted to a minister are performed by an official employed in the minister”s department there is in law no delegation because constitutionally the act or decision of the official is that of the minister. The official is merely the machinery for the discharge of the functions entrusted to a minister. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 906: 1975(3) SCC 241: 1974 Crl LJ 1500: 1974 CrLJ (SC) 575: 1974 SCC(Cr) 859: 1974 CAR 270: 1974 (2) SLR 701. A delegation of powers, made under rule 12 (2) (a), CCS (CC&A) Rules need not be published in the Gazette. In the rules, whenever notification in the Official Gazette is required, the same has been mentioned. Where an order, general or special, is to be issued, the same has been mentioned without any requirement of publication. Orders of delegation are not subordinate legislation but are in the nature of executive orders and need not be published. R.C. Pathak v. Union of India, (1990) 13 ATC 662 (New Delhi). It was held that merely because the Governor subsequently has empowered the Collector of the District to also inflict minor punishment, it does not mean that by such delegation the Governor is denuded of his power to delegate power of suspension on the Collector. Once the Collector was empowered by the Governor to suspend a Government servant working in connection with the affairs of the community development, the said power continued to be exercisable by the Collector even delegation of power on the Collector to impose minor punishment. State of Orissa v. Baidhar Sahu, AIR 2000 SC 1683: 2000(4) SCC 475: 2000(5) JT 499: 2000 Lab IC 1846: 2000(4) SLR 355 (SC). 5. Delegation of Power to Remove an Employee — It is implicit in the statutory prohibition debarring removal by a lesser authority, that the appointing authority has to personally apply its mind to the question of removal and cannot delegate such a function. Since the authority which can remove an employee is the appointing authority or its superior in office, the protection thus provided cannot be

272


[R. 12

destroyed by importing concepts of agency. Management of D.T.U. v. B.B.L.Hajelay, (1972) II SCWR 597: AIR 1972 SC 2452: 1973(2) SCR 114: 1972(2) SCC 744: 1972 SLR 787: 1972 Lab IC 1619. 6. Officer-in-charge of Current Duties — An officer appointed to perform the current duties cannot exercise powers under Rule 12. Paresh Chandra Dutta v. Collector of Calcutta, 1979 (1) SLR 44. 7. Rule 12 (3), Supplementary to Rule 12(2) — Rule 12(3) is supplementary to Rule 12(2). Rule 12(2) specifies certain authorities as disciplinary authorities, and Rule 12(3) mentions that in respect of employees of certain categories certain other officers will also be the disciplinary authorities. Commissioner of Transport, H.P.Govt., v. Narain Dass, 1974 (1) SLR 386: 1974 SLJ 621. 8. Government can Confer Power of Dismissal on Other Officer — There is nothing in the Constitution which debars the Government from conferring powers on an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appointing officer or authority. State of U.P. v. Ram Naresh Lal, AIR 1970 SC 1263: 1970(3) SCC 173: 1970 Lab IC 1063: 1970 SLR 819. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at the point of time the Constitutional Guarantee under Art. 311(1) becomes available by the person holding a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorisation made in favour of respondent in regard to making appointments to the post held by appellant cannot cover the power to remove him. Krishna Kumar v. Divisional Asstt. Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1979 SLJ 532: 1979 (2) SLR 291: (1980) 1 SCJ 183. On a reference to Rule 2(a) and Rule 9 of the Railway Servants (Discipline and Appeal) Rules, it was held that it would be impossible for the President to deal with all the disciplinary matters of the Government employees. Therefore, delegation of appointment power was made to the General Manager and disciplinary power was delegated to the Divisional Manager. The General Manager is not the delegator. Consequently, the doctrine that a delegator cannot further delegate his powers to the delegate has no application. As a result, it was held that the delegation of power to impose appropriate punishment is permissible. Union of India v. N.V. Phaneendran, 1995 Supp (3) SCR 141: 1995(6) SCC 45: 1995(31) ATC 431: 1995(5) SLR 260 9. Dismissal or Removal by Authority Subordinate to that by which he was Appointed — The Constitutional Guarantees to a civil servant are:— (i) that he cannot be dismissed or removed from service by authority who is in rank inferior to that of the appointing authority; (ii) if the two authorities i.e. the appointing authority and dismissing authority are different, they must be at least of co-ordinate equal rank; (iii) it is of no consequence that the subsequent authority enjoys the same powers as the former;

R. 12]


273

(iv) subordination has to be understood in rank and not in the exercise of powers which in other words means if the succeeding authority has all the powers of the preceding authority but is inferior in rank and status to the appointing authority, he cannot dismiss a civil servant appointed by the authority who is superior in rank; (v) if a certain civil servant is appointed by one authority and subsequently those powers are vested in a different authority, lower in rank but by some rule or some enactment appointments made by the previous authority are to be deemed to have been made by the succeeding authority, even then the succeeding authority cannot dismiss a servant appointed by the superior authority; (vi) if by means of some transfer of a civil servant from one department to another or from one Government to another, the powers of dismissal are to be exercised by the Head of the Deptt. who is equal in rank to the previous Head of the Department or in the case of one Government succeeding another with equal powers, then dismissal or removal of a civil servant by the succeeding Head of the Department or Government is not invalid and does not violate Art. 311(1). State of J &K v. Raj Mohammad, 1971 Lab IC 1481 (FB): 1971 (2) SLR 828 (J&K); Mysore State Road Transport Corpn. v. Mirza Khasim Ali Beg, AIR 1977 SC 747: 1977(2) SCR 282: 1977(2) SCC 457: 1977 Lab IC 272: 1977 (1) SLR 237; Dina Nath v. District Medical Officer, 1982 (2) SLJ 691; Girwar v. Union of India, 1982 (2) SLJ 56. Termination by an authority who actually ed the order of appointment is not invalid even if such authority is no appointing authority under the Rules. State of Uttar Pradesh v. Chandrapal Singh, 2003(4) SCC 670: 2003(2) LLJ 744. 10. Provincial Government to make Appointment but Appointment made by Commandant General : Dismissal by Commandant General not Void — The appellant was appointed by the Commandant General even though under rules the appointment was to be made by the Provincial Govt. The dismissal order by the Commandant General would not be void on the ground that it is made by an authority lower than the appointing authority. Ramanand Singh v. State of Bihar, 1982(1) SCC 214: AIR 1982 SC 1394: 1982(1) SLR 693: 1982 BLJ 395: 1982 BLJR 438: 1982 Pat LJR (SC) 55: 1982(2) SCWR 209. 11. Power of Authority Subordinate to Appointing Authority — Termination of service by an authority subordinate to the appointing authority is unconstitutional. Head of Department is appointing authority. Rule cannot be framed authorising an officer subordinate to Head of Department to dismiss an employee within meaning of Art. 311(2) of the Constitution. Vasanta G. v. State of Nagaland, AIR 1969 Assam 3; Nawab Husain v. State of U.P., AIR 1969 All 466; Balakdass Vathoba v. Asst. Security Officer, S.E. Rly., AIR 1960 MP 183; Maqbool Hussain v. Supdt. of Police, 1969 SLR 660: 1970 Lab IC 601. 12. Authority Subordinate — Subordination is of Rank and not of Functions — What is involved in matters of appointment and removal is the status and rank of the employee and the status and rank of the authority taking action. Since an officer or an employee shall not be dismissed by an authority subordinate to that by which he was appointed, the subordination is of rank and not functions. Management of

274


[R. 12

D.T.U. v. B.B.L. Hajelay, (1972) II SCWR 597: AIR 1972 SC 2452: 1973(2) SCR 114: 1972(2) SCC 744: 1972 SLR 787: 1972 Lab IC 1619. 13. Punishment by Delegate Subordinate in Rank — Delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the Constitutional Guarantee under Art. 311(1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of delegate in regard to making appointments to the post held by the Government servant cannot confer upon the delegate the power to remove him. On the date of Government servant”s appointment if the delegate had no power to make the appointment he cannot have the power to remove that Government servant. Krishna Kumar v. Divisional Asst. Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1979 SLJ 532: 1979 (2) SLR 291. 14. Illustrative Cases — (1) Commissioner Appointing Authority : Revision by Deputy Commissioner Illegal — Where an appointment has been made by the Commissioner then despite the fact that the powers of appointment having been validly delegated to the Deputy Commissioner, will not clothe the latter, who is ittedly subordinate in rank to the Commissioner to levy punishment simply because the regulations empower him to do so. Takhat Singh v. Corporation of Delhi, 1973 SLJ 262: 1973 (2) SLR 350. (ii) The appointing authority of the petitioner was the Commissioner. Merely because by a set of rules subsequently framed the punishing authority in respect of the category to which the petitioner belonged was the Collector, the statutory requirement on the basis of the Constitutional Guarantee cannot be said to be satisfied by the authorised officer imposing the punishment. The appointing authority continued to be Commissioner as a fact and the subsequent authorisation vesting the power in the Collector to punish an officer of the petitioner”s category did not amount to compliance of Art. 311(1) of the Constitution. Babaji Charan Rout v. State of Orissa, 1982 (1) SLJ 496: 1982 Lab IC 603: 1981 (3) SLR 189. (2) General Manager Appointing Authority : Removal by Asst. General Manager Illegal — The appointing authority of R.2 was General Manager. The Asst. General Manager decided to remove R.2 as a result of disciplinary enquiry. The General Manager had delegated his power to the Asst. General Manager to appoint and to remove from service, a driver like R.2. Held, that a protection which is given to an employee by the statute cannot be nullified by rules and regulations authorised by the statute itself. Assistant General Manager was not a competent authority to remove R.2. Management of D.T.U. v. B.B.L. Hajelay, 1973(2) SCR 114: 1972(2) SCC 744: 1972 SLR 787: 1972 Lab IC 1619. (3) Chief Electrical Engineer Appointing Authority : Removal by Divisional Assistant Engineer : Unconstitutional — Appellant was appointed by

R. 12]


275

C.E.E. and he was removed from service by D.A.E. who is subordinate to rank to C.E.E. Power to make appointment to the post of appellant was delegated to certain officers including D.A.E. Removal is unconstitutional. Krishna Kumar v. Divisional Astt. Electrical Engineer, AIR 1979 SC 1912: 1980(1) SCR 50: 1979(4) SCC 289: 1979 Lab IC 1314: 1978 SLJ 532: 1979 (2) SLR 291. (4) Director of Industries Appointed Instructor : Removal by Principal of Institute — Petitioner was appointed as Punjabi Stenography-instructor by the Director of Industries and his services were terminated by the Principal of Industrial Training Institute. Director of Industries had delegated his powers to the Principal to appoint and terminate the services of clerks/Instructors in the grade of Rs 120-200. Petitioner had been appointed in the grade of Rs 160-400. Order of termination set aside. Manohar Lal v. State of Punjab, 1980 (3) SLR 705. (5) Director of Health Service Being Appointing Authority : Removal by Civil Surgeon (D.M.P.) Set Aside — Petitioner was appointed by Director of Health Services. The power to impose a penalty of removal from service as disciplinary authority had been duly conferred on the Civil Surgeon (D.M.P.), but it was conferred after the petitioner had been appointed by the Director of Health Services. The Civil Surgeon could not, therefore, impose the penalty of removal on the petitioner. Dina Nath v. Dist. Medical Officer (Civil Surgeon), (1982) 2 SLJ 691. (6) Lekhpal under U.P. Lekhpal Service Rules, 1958 — The Sub-Divisional Officer being the appointing authority is entitled to take disciplinary action against Lekhpal (Patwari) and impose the penalties including removal or dismissal from service under rule 7 of U.P. Lekhpal Service Rules, 1958. State of Uttar Pradesh v. Bihari L.L. Mishra, 1997(11) SCC 400. (7) Superintendent of Police— In the state of Tripura, in view of the Clause (o) of Regulation 861, as substituted by notification dated 17-2-1968, the Superintendent of Police was competent to initiate proceedings against officers of and below the rank of Sub-Inspectors. State of Tripura v. Priyabandhu Chakraborty, 1997(11) SCC 405. In one case the order of dismissal is signed by “Superintendent of Police, Patiala”. The officer who ed the order did not describe himself as “Superintendent of Police (Headquarters)”. Whether that description is not correct is a question which the High Court ought to have dealt with. It should also have dealt with the question whether the order is incompetent, if it has been ed by the “Superintendent of Police (Headquarters)”. It may also he necessary to find out whether the respondent was posted in the Headquarters at the time of his dismissal and was he subordinate to “Superintendent of Police (Headquarters)”. It may also be necessary to deal with the contention of the State based upon the language employed under Column (6) of Rule 16.1 of the Punjab Police Rules. The Supreme Court therefore held that the matter should be examined in depth by the High court. Accordingly the appeal was allowed and the matter was remitted to the High Court for fresh disposal in accordance with the law. State of Punjab v. Sarwan Singh, AIR 1996 SC 2981: 1996(1) JT 584: 1996 Lab IC 1045: 1996(1) SLR 748: 1996(72) FLR 663.

276


[R. 12

Where a superior officer has been authorised to perform some duties under an Act or a regulation, a subordinate or deputy officer lawfully performing those duties in the place of his superior is equally empowered to perform the duties of the office of the superior. Rule 4 applicable on Delhi Police states that not only the Deputy Commissioner but Additional Deputy Commissioner also has been delegated the power of appointing Sub-Inspectors, Assistant Sub-Inspectors, Head Constables and Constables. An Additional Deputy Commissioner is thus competent to an order of dismissal and a police constable, as is the petitioner. Therefore, in a given case, even Additional Deputy Commissioner can order of dismissal. He was held to be an authority of the same rank as referred to in Section 19 of the General Clauses Act. Ram Kishan v. Union of India, AIR 1996 SC 255: 1995 Supp (3) SCR 251: 1995(6) SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929. (8) Inspector General under Central Reserve Police Force Rules, 1955— while for the purpose of appointment, the approval of the DIG or the IG, as the case may be, is required to be obtained, that does not make the IG, the appointing authority. The punishments shown as items I to II in column 2 of the table can be imposed on nongazetted officers and men of various ranks by the authorities named under headings at columns 3 to 6 in of the conditions mentioned in column 7. So far as item No. 1 in Rule 27 is concerned. Subedar (Inspector) can be dismissed or removal from the Force by the Deputy Inspector General of Police, who is higher in rank than the Commandant. While considering an almost identical provisions Supreme Court held that even when prior recommendation is necessary, it does not make the recommending/approving authority the appointing authority. According to Rule 7(b), the appointing authority is the Commandant and since the DIG is of higher rank, there is no illegality in the order ed by him in ing the order of dismissal. Just because the IG”s approval is required for the purpose of appointment or promotion, the position of the Commandant as the appointing authority is not changed and the IG does not become the appointing authority. Kanta Devi v. Union of India, 2003(4) SCC 753. (9) T.N. Police Subordinate Services (Discipline and Control) Rules, 1955 — Departmental enquiry can be initiated by different authorities such as appointing authority, disciplinary authority or even the controlling authority. Additional Supdt. of Police v. T. Natarajan, 1998(9) JT 257: 1999(3) LLJ 1482: 2000(85) FLR 39. 15. Exercise of Power of President and Governor to Dismiss Public Servant — The decision of Minister or an officer under the rules of business is the decision of the President or Governor. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974 (2) SLR 701. The decision of Sardari Lal v. Union of India, AIR 1971 SC 1547: 1971(3) SCR 461: 1971(1) SCC 411: 1971 (2) SLR 168, that the President has to satisfy personally over-ruled. Also see Hazara Singh v. Union of India, 1976 (1) SLR 350; T.C. Sharma v. Inspector General of Prisons, 1977 (2) SLR 71. 16. Order under Article 77 or Article 166 : Validity Cannot be Questioned — Order substantially in accordance with the form envisaged by clauses (1) and (2) of Art. 77 of the Constitution. Its validity could not be called in question on the ground

R. 12]


277

that it was not an order made by the President. Presumption of correctness attached. State of Haryana v. Dev Dutt Gupta, 1970 SLR 776; Hazara Singh v. Union of India, 1976 (1) SLR 340; Kanwal Prakash v. State of Punjab, 1976 (2) SLR 801; Yogendra Thakur v. State of Bihar, 1981 (2) SLR 833. Where the order communicating the decision is issued in the name of the President and duly authenticated in the manner prescribed, the presumption is irrebutable that the order is made by the Governor or President as the case may be, but where the order does not comply with the provision, it is open to question the validity that the order was not made by the President or Governor as the case may be. Gulabrao Keshvrao Patil v. State of Gujarat, 1995 Supp (6) SCR 97: 1996(2) SCC 26: 1995(4) CCC 362: 1996(1) SCJ 98: 1996(1) CLT 226(SC). However there is a change in the legal position of judicial review of orders ed under article 77 of the Constitution. It has been held that though an order is issued in the name of the President, it does not become an order of the President ed by him personally, but remains, basically and essentially, the order of the Minister on whose advice the President acts and es order. Therefore authenticity, validity and correctness of such an order can be examined by Supreme Court in spite of the order having been expressed in the name of the President and the immunity available to the President under Article 361 can not be extended to the orders ed in the name of the President under Article 77(1) or Article 77(2). Common Cause, A ed Society v. Union of India, AIR 1999 SC 2979: 1999(3) SCR 1279: 1999(6) SCC 667: 1999(3) KLT 25(2)(SN): 2000(1) CCR 5(SC) 17. Promotion by Higher Authority, Dismissal by Authority Lower in Rank to Promoting Authority — Where an authority higher than the one entitled under the statutory rules to order an appointment, in fact orders a valid appointment, it is the factum of that appointment that controls the scope of the guarantee conferred by Art. 311(1) of the Constitution, and if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order dismissal, which however is lower in rank than the authority which in fact ordered the appointment, such an order would contravene the provisions of Art. 311(1) of the Constitution. N. Somasundram v. State of Madras, AIR 1956 Mad 419; Bachubha Ram Singh Ji v. Shri Shiv Lal, AIR 1970 Guj 180; Man Singh v. State of Punjab, 1973 (1) SLR 365. 18. Order by Authority Superior to Punishing Authority — Where the service rules do not state that the penalty of dismissal shall not be inflicted on an employee by any authority higher than that named in the rule, no question of violation of any rule or Art. 311(1) arises if service is terminated or order of dismissal is ed by superior authority. Jagan Nath Prasad Sharma v. State of U.P., AIR 1961 SC 1245: 1962(1) SCR 151: 1961(2) LLJ 166; State of Madras v. G. Sundaram, AIR 1965 SC 1103; K.C. Chandrasekharan v. State of Kerala, AIR 1964 Kerala 87; State of Haryana v. Baldev Krishan Sharma, 1970 SLR 500; Union of India v. Babban Singh, 1981 (3) SLR 244. Seetharam Reddy J. in Pothula Subba Rao v. Post Master General, Andhra Circle, 1980 SLJ 227: 1980 (3) SLR 183, has however held that “unless there is a direct

278


[R. 12

provision connecting the power to the higher authority imposing penalty alleged for, it will not be competent for the said higher authority to seek to impose the punishment.” 19. Order of Officer Superior to Appointing Authority — Appointing authority deciding to retain employee beyond the age of 55 years when retirement age raised to 58 years. Officer superior to appointing authority has no jurisdiction to decide whether the Government servant should or should not continue after the age of 55 years. Roshan Lal v. Financial Commissioner, Haryana, 1968 SLR 650; Bhim Chand v. Dy.Commissioner, Rohtak, 1968 SLR 798. Where according to rules, the appointing authority was the Commandant and since the DIG was of higher rank, it was held that there was no illegality in the order ed by him in ing the order of dismissal. Kanta Devi v. Union of India, 2003(4) SCC 753. 20. Disciplinary Jurisdiction Over of State Judicial Service — The word “control” used in Article 235 would indicate that although the Appointing Authority of the District Judge and officers other than District Judges is the Governor of the State, the words “control over district courts and courts subordinate thereto”, which are words of wide connotation, vest in the High Court other facets of service of those officers, namely, their confirmation on completion of the period of probation, their postings, transfers and disciplinary matters including power to recommend major punishments. Thus, the “control” vested in the High Court is complete control subject only to the powers of the Governor in the matter of appointment, initial posting and promotion to the posts of District Judges. For imposing major punishment, including the punishment of dismissal, removal or reduction in rank, the High Court can, in exercise of its powers under Article 235 of the Constitution, hold disciplinary proceedings and recommend the punishment to be imposed on the delinquent to the Governor who alone would be competent to impose such punishment having regard to the provisions of Articles 233 and 234. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39. Disciplinary jurisdiction over of State Judicial Service is vested in the High Court which alone can make enquiries into their disciplinary conduct. If as a result of any disciplinary proceedings, order of dismissal, removal or termination is to be made, the same can be ed by the Governor on the recommendations of High Court. Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974 (2) SLR 701: 1974 Lab IC 1380; High Court of Punjab v. State of Haryana, 1975 SLJ 189: 1975 (1) SLR 329; Baradakanta Mishra v. High Court of Orissa; 1976 (2) SLR 186 (SC); Baldev Raj Guliani v. P.&H. High Court, 1976 SLJ 601: 1976 (2) SLR 758; State of Gujarat v. Ramesh Chandra, AIR 1977 SC 1619: 1977(2) SCR 710: 1977(2) SCC 12: 1977 Lab IC 849; Chief Justice, A.P. v. L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1978 Lab IC 1672: 1979 (1) SLR 1; P. Kumara Menon v. State of Kerala, 1982 (1) SLR 104. The High Courts are vested with the disciplinary control as well as istrative control over the of the Judicial Service exclusively, but that does not mean that they can also orders of dismissal, removal, reduction in rank or

R. 12]


279

termination from service while exercising istrative and disciplinary control over the of Judicial Service. Undoubtedly, the High Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of dismissal, removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be ed only by the State Governor on the recommendation of the High Court. It is well settled again by a catena of decisions of Supreme Court that the recommendation of the High Court is binding on the State Government/Governor. Therefore while the High Court retains the power of disciplinary control over the subordinate judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiries and impose punishment on them but when it comes to the question of dismissal, removal, reduction in rank or termination of the services of the judicial officer, on any count whatsoever, the High Court becomes only the recommending authority and cannot itself such an order. Registrar (istration), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999 SC 3265: 1999(7) SCC 725: 1999 Lab IC 3243: 1999(4) LLN 1202: 1999(83) FLR 427: 2000(96) FJR 363: 1999(5) SLR 191: 2000(1) SLJ 226 relying upon Shyam Lal v. State of U.P., (1955) 1 SCR 26 and High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, (1998) 3 SCC 72. In another case the order of removal was ed by the High Court itself and not in the name of Governor. Held that though the recommendation of the High Court for removal from service is binding on the Governor, the High Court cannot by itself the order of removal from service. Therefore an order terminating the service of a judicial officer should be treated as a recommendation to Governor. T. Lakshmi Narasimha Chari v. High Court of Andhra Pradesh, AIR 1996 SC 2067: 1996(5) SCC 90: 1996(73) FLR 1618: 1996 SCC(L&S) 1133: 1996(2) SCJ 524: 1996(2) SLJ 40: 1996(4) SLR 1: 1996(2) LLN 479. 21. Superintendent of Police or District Superintendent of Police — “Superintendent of Police” in Rules and “District Superintendent of Police” in the Act refer to one and the same authority. Punjab Police Rules, Rule 16.1, Union of India v. Jagjit Singh, AIR 1970 SC 122: (1970) 1 SCR 163: 1969(2) SCC 108: 1969 SLR 356; Union of India v. Ram Kishan, AIR 1971 SC 1403: 1971 Supp SCR 757: 1971(2) SCC 352: 1972 SLR 11: 1971 Lab IC 894: (1971) I SCWR 838. 22. Superintendent of Police not Subordinate to Senior Superintendent of Police — Senior Superintendent of Police had promoted the petitioner to the rank of Head Constable. He was dismissed by the Superintendent of Police. Held, in both cases the authority was a Superintendent of Police. Seniority in service did not cause any disparity in rank. Iqbal Singh v. I.G. Police, 1971 (2) SLR 257 (Delhi). 23. Successor Disciplinary Authority : Change of Opinion — Where the disciplinary Authority gave a clean bill to the petitioner it is not possible for the successor of the Disciplinary Authority to change that opinion and issue a self same charge-sheet against the petitioner. Rabati Mohan Chatterjee v. Union of India, 1973 SLJ 928. See also M.P. Patrudu v. Controller General Defence, s, New Delhi, 1994 (1) SLR 219 (CAT Hyderabad).

280


[R. [13

AUTHORITY TO INSTITUTE PROCEEDINGS R. [13

13. Authority to institute proceedings :— (1) The President or any other authority empowered by him by general or special order may:— (a) institute disciplinary proceedings against any Government servant; (b) direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in Rule 11. (2) A disciplinary authority competent under these rules to impose any of the penalties specified in clause (i) to (iv) of Rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of Rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties. COMMENTARY SYNOPSIS 1.

Authority empowered to institute proceedings .............................................................. 280

2.

Authority to issue charge memo ..................................................................................... 281

3.

Disciplinary authority competent to impose minor penalty may institute proceedings for any major penalty ................................................................................ 281

4.

Illustrative Cases .............................................................................................. 281

5.

Words “may institute disciplinary proceedings” in sub-rule (2), interpretation of ........ 282

6.

Departmental enquiry can be initiated by authority competent to take disciplinary action ............................................................................................................................. 282

7.

Application of mind in initiating proceedings ............................................................... 282

8.

Disciplinary proceedings against District Judges and Judicial Officers ........................ 283

9.

Institution of proceedings: Time for commencement of ................................................ 284

10. Institution of proceedings against employee on verge of retirement or after retirement ...................................................................................................................... 286 11. Retention in service for disciplinary enquiry ................................................................. 287

1. Authority Empowered to Institute Proceedings — Rule 13 defines the authority empowered to institute proceedings. The authority to institute disciplinary proceedings may be different from the authority prescribed for removing a Government servant. Rule 13 (2) contemplates that the authority empowered to institute proceedings may not be competent to impose all the penalties prescribed. Commisioner of

R. [13]


281

Transport, H.P. Government v. Narain Dass, 1974 (1) SLR 386: 1974 SLJ 621. See also M.P. Patrudu v. Controller General, Defence s, New Delhi, 1994 (1) SLR 219 (CAT Hyderabad); Bhagat Singh v. Union of India, 1994 (7) SLR 743 (CAT Calcutta). It is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority who may be an officer subordinate to the appointing authority. Steel Authority of India v. R.K. Diwakar, AIR 1998 SC 2210: 1997(11) SCC 17: 1997(7) JT 404: 1997(3) CLT 379(SC): 1997(77) FLR 351: 1997(5) SLR 234: 1998(1) LLJ 344: 1998(1) SLJ 57: 1998 Lab IC 2122; See also Ram Kishan v. Union of India, AIR 1996 SC 255: 1995(6) SCC 157: 1995(7) JT 43: 1995(6) SLR 52: 1996(1) LLJ 982: 1996(1) LLN 14: 1995(71) FLR 929 Although Art. 311 of the Constitution does not speak as to who shall initiate the disciplinary proceedings but, that can be provided and prescribed by the Rules. But if no Rules have been framed, saying as to who shall initiate the departmental proceedings, then on the basis of Art. 311 of the Constitution it cannot be urged that it is only the appointing authority and no officer subordinate to such authority can initiate the departmental proceeding. Registrar of Co-operative Societies v. F.X. Fernando, 1994(2) SCC 746: 1994(1) SLR 820: 1994(27) ATC 188: 1994(1) SLJ 124: 1994(68) FLR 769: 1994(1) LLN 847: 1994(1) LLJ 819. 2. Authority to issue charge memo— It is not necessary that charge memo has to be issued only by an appointing authority or an authority holding a higher rank. Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708: 1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1. 3. Disciplinary Authority Competent to Impose Minor Penalty May Institute Proceedings for Any Major Penalty — Sub-rule (2) of Rule 13 expresses in general that a disciplinary authority competent to impose any of the minor penalties may institute disciplinary proceedings against any Government servant for the imposition of any of the major penalties specified in Rule 11. 4. Illustrative Cases: (i) What Rule 13(2) of CCS(CCA) Rules, 1965 contemplates is that a subordinate officer who is empowered to impose minor penalty is also entitled to initiate disciplinary proceedings for major penalties. Of course, the order could be ed by the competent authority after the enquiry was conducted and matter was placed before them. Himachal Road Transport Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997(9) SCC 39: 1997(2) SLR 580: 1997(76) FLR 233: 1997(2) SCJ 172: 1997 Lab IC 2652: 1998(1) LLJ 1058: 1998(1) SLJ 44: 1998(3) LLN 24. (ii) Under the schedule appended to the Rules any of the “minor penalties” could be imposed on a Sub-Post Master by the Senior Superintendent of Post Offices but the “major penalties” could only be imposed by the Director of Postal Services. Since senior Superintendent of Post Offices is competent to impose any of the penalties specified in clauses (i) to (iv) he can as disciplinary authority institute disciplinary

282


[R. [13

proceedings against the Sub-Post Master for the imposition of any of the major penalties. On receipt of findings of inquiry the major penalty can be imposed by the Director of Postal Services and not by the Senior Superintendent of Post Offices. Director of Postal Services v. Oudh Behari, 1980 SLJ 142; Bengali Ram v. State of H.P., (1980) (2) SLR 776. (iii) Departmental enquiry against a sub-Inspector of Police was initiated on basis of certain charges by Supdt. of Police. Supdt. of Police concluded that respondent was guilty of charges and recommended to Inspector General of Police for dismissal of respondent. Inspector-General sent copy of report to respondent to show cause why he should not be dismissed and after considering the explanation submitted by respondent dismissed him. Supdt. of Police initiated and conducted enquiry under Police Regulations. Held, that the guarantee given under Article 311 (1) does not include within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in the Article. State of M.P. v. Shardul Singh, (1970) 2 SCJ 442: (1970) 1 SCWR 65: 1970 SLR 101; Also see M.A. Periaswamy v. D.I.G. Police, Madurai, 1974 (2) SLR 843. In the Zoological Survey of India under Government notification dated 15th July 1975 the Head Office can take disciplinary action even if the Director of the Zoological Survey has not delegated the power to him. Ram Niwas v. Union of India, (1990) 3 SLR 345 (CAT Jabalpur). Power to punish cannot be exercised by an authority higher in rank than the competent one. P.M.Abdul Khader v. Union of India, (1990) 14 ATC 619 (Ernakulam). 5. Words “May Institute Disciplinary Proceedings” in Sub-rule (2): Interpretation of — The words used in sub-rule (2) “may institute disciplinary proceedings” making it unmistakably clear that what the Rule envisages is a departmental inquiry and not a preliminary inquiry. The distinction between a preliminary inquiry and a regular departmental inquiry was emphasised by the Supreme Court in Champaklal Chimanlal Shah v. Union of India, 1964(5) SCR 190: AIR 1964 SC 1854: 1964(1) LLJ 752; Director, Postal Services v. Oudh Behari Singh, 1980 SLJ 142. 6. Departmental Enquiry can be Initiated by Authority Competent to take Disciplinary Action — An enquiry can only be ordered against a Government servant by an authority competent to take disciplinary action against him. Where the enquiry was ordered by an authority who was not the disciplinary authority and the disciplinary authority ed order of removal on the basis of a report of Enquiry Officer, the order of removal was set aside as the basis of report was of an Enquiry Officer who had not been appointed by the disciplinary authority. Baldev Singh v. Secretary to Government, Punjab, 1969 Cur LJ 625; 1969 SLR 689. See also Bhagat Singh v. Union of India, 1994 (7) SLR 743 (CAT Calcutta). 7. Application of mind in initiating proceedings— A competent authority exercising powers to initiate disciplinary proceedings has to apply his mind independently and if such statutory authority acts at the behest of some other higher authorities, action taken by him or order ed by him shall be nonest in the eyes of

R. [13]


283

law. D.Ramesh Sinha v. Cadre Authority for Key Personnel of Co-operative Central Banks/Apex Bank, 2002(1) SLR 93 AP (DB). 8. Disciplinary Proceedings Against District Judges and Judicial Officers — The Indian Constitution provides for an independent judiciary in every State by making a provisions for a High Court being constituted for each State. The constitution has conferred very wide powers and extensive jurisdiction on each High Court, including the power of superintendence over all the courts and tribunals in the territory over which it has jurisdiction. Undoubtedly, one of the most important wings of the judiciary comprises of the subordinate courts as it is in these courts that the judiciary comes in close contract with the people. In order to secure the independence of the subordinate judiciary from the Executive, Articles 233 to 237 have been placed in the Constitution. Article 233 deals with the appointment of District Judges and provides that appointments, posting and promotions of District Judges in any State shall be made by the Governor in consultation with the High Court, exercising jurisdiction in relation to such State. The word “District Judge” has been defined in Article 236(a). The expression “judicial service” has been defined in clause (b) of Article 236. Article 237 gives power to the Governor to apply, by public Notification, the provisions of this Chapter and the Rules made there under to any class or classes of Magistrates. Once such a Notification is issued, the provisions of Articles 234, 235 and 236 will become applicable to those magistrates and they would become of the “judicial service” under the control of the High Court. In order to ensure their independence, the control over the subordinate courts has been vested in the High Court under Article 235. From the scheme of the Constitution, it will be seen that though the officers of subordinate judiciary are basically and essentially Government Servants, their whole service is placed under the control of the High Court and the Governor cannot make any appointment or take any disciplinary action including action for removal or compulsory retirement unless the High Court is “CONSULTED” as required by the constitutional impact of both the Articles 233 and 234 and the “control” of the High Court indicated in Article 235. Madan Mohan Choudhary v. State of Bihar, AIR 1999 SC 1018: 1999(3) SCC 396: 1999(1) SLR 718: 1999(2) LLJ 229: 1999(1) SCJ 449: 1999(2) LLN 4: 1999(81) FLR 712: 2000(1) SLJ 87. The word “control” used in Article 235 would indicate that although the Appointing Authority of the District Judge and officers other than District Judges is the Governor of the State, the words “control over district courts and courts subordinate thereto”, which are words of wide connotation, vest in the High Court other facets of service of those officers, namely, their confirmation on completion of the period of probation, their postings, transfers and disciplinary matters including power to recommend major punishments. Thus, the “control” vested in the High Court is complete control subject only to the powers of the Governor in the matter of appointment, initial posting and promotion to the posts of District Judges. For imposing major punishment, including the punishment of dismissal, removal or reduction in rank, the High Court can, in exercise of its powers under Article 235 of the Constitution, hold disciplinary proceedings and recommend the punishment to be imposed on the delinquent to the Governor who alone would be competent to impose such punishment having regard to the provisions of Articles 233 and 234. Yoginath D. Bagde v. State of

284


[R. [13

Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39 Therefore the High Court should order, initiate and hold enquiries. The Governor has no power to initiate such a proceeding or to transfer the same to the istrative Tribunal. Where the High Court requested the Government to depute the Director of Vigilance to hold an enquiry, the Supreme Court held that the High Court failed to discharge the duty of preserving its control and acted in total disregard of Art. 235 of Constitution. State of West Bengal v. N.N. Bagchi, AIR 1966 SC 447; State of Assam v. Ranga Mohammad, AIR 1967 SC 903; Gangadhar Shivalingappa Nagmoti v. State of Mysore, 1970 SLR 716: AIR 1970 Mys 302; Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1974(2) SCC 831: 1974(2) SLR 701: 1974 Lab IC 1380. The High Court within the powers and control vested under Art. 235 can hold disciplinary proceedings and can recommend the imposition of a major penalty. The actual power of imposition of one of the major punishments is exercisable by the Governor who is the appointing authority. Barada Kanta Mishra v. High Court of Orissa, AIR 1976 SC 1899: 1976 Supp SCR 561: 1976(3) SCC 327: 1976(2) SLR 186: 1976 Lab IC 1202: 1976 SLJ 539; Chief Justice, A.P. v. L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1978 Lab IC 1672 1979 (1) SLR 1; P.Kumara Menon v. State of Kerala, 1982 (1) SLR 104: 1982 (1) SLJ 91. 9. Institution of Proceedings: Time for Commencement of — It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest istration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the fact of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of istrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, the disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations. State of Andhra Pradesh v. N. Radhakishan, 1998(4) SCC 154: AIR 1998 SC 1833: 1998(2) SLR 786: 1998(3) SLJ 162: 1998(2) LLN 452: 1999(94) FJR 62.

R. [13]


285

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 istration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides 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 facts 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. State of Punjab v. Chaman Lal Goyal, 1995(2) SCC 570: 1995(29) ATC 546: 1995(1) SLR 700: 1995(2) SLJ 126: 1995(2) LLJ 679: 1995(70) FLR 834 . Merely because disciplinary proceedings for inefficiency or negligence of duty for the period. December 1957 to June 1960 were commenced in April 1965, it does not in any way lead to the conclusion that he was discriminated against or equality in the matter of employment was denied to him. It is generally not possible to start disciplinary proceedings immediately after the period ends. Such matters come to notice after fairly long periods and then have to be processed before the disciplinary proceedings actually commence. Brahm Dev Seth v. Union of India, 1973 SLJ 961. In case of delay in disciplinary proceedings, it was held that though Tribunal was right in ordering reinstatement of the employee but it had no power to quash the charges and disciplinary proceedings. Union of India v. Raj Kishore Parija, 1995 Supp (4) SCC 235: 1996 SCC(L&S) 196: 1996(32) ATC 133. The interest of justice demand that the officers found indulging in corruption or such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defeat the just retribution. The wheels of justice may appear to grind slowly but it is the duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless. Delhi Development Authority v. Skipper Construction, AIR 1996 SC 715: 1996(1) SCC 272: 1996 SCC(L&S) 294: 1996(32) ATC 230: 1995(8) SLR 221. Allegation of permitting use of sub-standard material in construction and the role played by officer concerned who was being charge-sheeted in respect of poor quality of construction. Since sub-standard houses were always available it was held that delay in such matter could not prejudice the delinquent and therefore quashing of disciplinary proceedings on the ground of delay not called for. Delhi Development Authority v. I.J. Mongia, 2001(3) SLT 43. Where the charges are of very serious nature like misappropriation and illegal allotment of land, it is not proper to quash the departmental proceedings on the ground of delay of 16 years. Narendra Pal Singh v. State, 1999(1) SLR 565 Raj. Similarly in another case there were allegations of embezzlement and fabrication of false record

286


[R. [13

which are done in secrecy therefore the long time was likely to be taken, and the order quashing the charges was set aside. Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, 1996(3) SCC 157: 1996(2) SLR 291: 1996(33) ATC 745: 1996(73) FLR 1247: 1996(1) LLN 448: 1996(2) LLJ 245. 10. Institution of Proceedings Against Employee on Verge of Retirement or After Retirement — There can be no doubt that if disciplinary action is sought to be taken against a Government servant it must be done before he retires. If a disciplinary enquiry cannot be concluded before the date of such retirement the course open to the Government is to an order of suspension and refuse to permit the public servant to retire and retain him in service till such enquiry is completed and a final order is ed. State of Punjab v. Khemi Ram, AIR 1970 SC 214: 1970(2) SCR 657: 1969(3) SCC 28: 1969 SLR 833: 1970 Lab IC 271: (1969) II SCWR 718; Mukhtiar Chand Dhir v. State of Punjab, 1982 (1) SLR 889. However a view is that the Government can conduct inquiry into misconduct, negligence or financial irregularity even after retirement of an employee. D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442: 1999(1) AD(Delhi) 649: 1999(1) LLJ 871. The enquiry proceedings can be legally continued against the officer even if he has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR 337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB). When no disciplinary action is initiated under All India Service Rules while the employee was in service disciplinary action cannot be taken after the retirement of the employee and similar proceedings initiated under State Rules prior to promotion of the candidate to All India Service cannot be continued after such promotion. State of Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB). Charge-sheet issued in 1999 in respect of events of 1984 much after the employee was retired from service. The relevant Rules specifically provided that inquiry shall not be instituted in respect of an event which took place more than four 4 years earlier. Held that the charge-sheet is liable to be quashed. R.C.Gupta v. P.S.E.B, 2002(2) SLR 559 P&H (DB). In the service rules no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation. Held that in view of the absence of such provisions in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC 666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999 Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294.

R. [13]


287

11. Retention in Service for Disciplinary Enquiry — Retention of a Government servant in service after the age of superannuation for the purpose of enquiry was not proper and the extension of the service was illegal. State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447: 1966(1) SCR 771: (1966) I SCWR 169: (1966) 2 SCJ 59. See also Bhagat Singh v. Union of India, 1994 (7) SLR 743 (CAT Calcutta).

288


[R. 14

PART VI

PROCEDURE FOR IMPOSING PENALTIES R. 14

14.

Procedure for imposing major penalties — (I) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Explanation — Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the Inquiring Authority shall be construed as a reference to the Disciplinary Authority. (3) Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up— (i)

the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

(ii)

a statement of the imputations of misconduct or misbehaviour in of each article of charge, which shall contain — (a)

a statement of all relevant facts including any ission or confession made by the Government servant;

(b)

a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement

PROCEDURE FOR IMPOSING PENALTIES

R. 14]

289

of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. (5)(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not itted or, if it considers it necessary to do so, appoint under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been itted by the Government servant in his written statement of defence, the disciplinary authority shall record its finding on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15. (b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers necessary to do so, appoint, under sub-rule (2) an inquiring authority for the purpose. (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding any inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in of the articles of charge. (6) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority — (i)

a copy of the articles of charges and the statement of the imputations of misconduct or misbehaviour;

(ii)

a copy of the written statement of the defence, if any, submitted by the Government servant;

(iii)

a copy of the statements of witnesses, if any, referred to in sub-rule (3);

(iv)

evidence proving the delivery of the documents referred to in sub-rule (3) to the Government servant; and

(v)

a copy of the order appointing the “Presenting Officer”.

290


[R. 14

(7) The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of 1[receipt by the inquiring authority] of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow. (8)(a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits; Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits. Note:— The Government servant shall not take the assistance of any other Government servant who has 2[three] pending disciplinary cases on hand in which he has to give assistance. (b) The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf. (9) If the Government servant who has not itted any of the articles of charges in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the government servant thereon. 1

2

Substituted by Notification No. 11012.8/94-Estt. (A), dt. 2-01-1996 for the words “receipt by him”. Substituted by Notification No. 11012/6/92-Estt. (A) dt. 04-6-1992 for the word “two”.


R. 14]

291

(10) The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the Government servant pleads guilty. (11) The inquiring authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presiding Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence (i)

inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3);

(ii)

submit a list of witnesses to be examined on his behalf;

Note:— If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. (iii)

give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).

Note:— The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government. (12) The inquiring authority shall, on receipt of the notice of discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of documents by such date as may be specified in such requisition:

292


[R. 14

Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case. (13) On receipt of the requisition referred to in sub-rule (12), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority: Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents. (14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. (15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interests of justice.

R. 14]


293

Note:— New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gaps in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. (16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded, and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. (17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. (18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. (19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant, or permit them to file written briefs of their respective case, if they so desire. (20) If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex prate. (21) (a) Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (iv) of Rule 11 [but not competent to impose any of the penalties specified in clauses (v) to (ix) of Rule 11], has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regard to its own

294


[R. 14

findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties. (b) The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witnesses and examine, cross-examine and re-examine the witnesses and may impose on the Government servant such penalty as it may deem fit in accordance with these rules. (22) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry, ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself: Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided. 23(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain — (a)

the articles of charge and the statement of the imputations of misconduct or misbehaviour;

(b)

the defence of the Government servant in respect of each article of charge;

(c)

an assessment of the evidence in respect of each article of charge;

(d)

the findings on each article of charge and the reasons therefor.


R. 14]

295

Explanation.— If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Government servant has either itted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include— (a)

the report prepared by it under clause (i);

(b)

the written statement of defence, if any, submitted by the Government. Servant;

(c)

the oral and documentary evidence produced in the course of the inquiry;

(d)

written briefs, if any, filed by the Presiding Officer or the Government servant or both during the course of the inquiry; and

(e)

the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.

COMMENTARY SYNOPSIS General 1.

Departmental enquiry: what it is.. .................................................................................. 301

2.

Department enquiry, a quasi judicial proceeding ........................................................... 302

3.

Disciplinary Enquiries, Form and procedure of ............................................................. 303

4.

Disciplinary Enquiries: Personal hearing if necessary ................................................... 303

5.

Disciplinary proceedings against several employees...................................................... 303

6.

Disciplinary proceedings whether end on attaining the age of superannuation .............. 304

7.

Disciplinary proceedings cannot be initiated or continued after retirement ................... 304

8.

Fresh enquiry after removal from service....................................................................... 305

9.

Disciplinary action against employee on verge of retirement ......................................... 305

296


[R. 14

10. Disciplinary action against probationer: Who gave notice terminating his service ........ 306 11. Disciplinary enquiry against civilians in Defence Service ............................................. 306 12. Disciplinary enquiry against judicial officer .................................................................. 307 13. Preliminary enquiry cannot take the place of regular enquiry — (i) Article 311 of the Constitution does not apply to preliminary enquiry ............. 307 (ii) Preliminary enquiry does not debar regular departmental proceedings ............ 307 14. Criminal and disciplinary proceeding simultaneously ................................................... 307 15. Acquittal or conviction whether bar to enquiry .............................................................. 308 16. Effect of order of acquittal on departmental proceeding ................................................ 309 17. De nova enquiry into charges of which official has been acquitted ............................... 310 18. De nova enquiry where penalty quashed on ground that Enquiry Officer was biased against delinquent official ...................................................................................................... 310 19. Disciplinary authority whether can order successive enquiries ...................................... 310 20. Re-enquiry when order set aside for not affording reasonable opportunity or on technical ground ..................................................................................................................... 310 21.

Second departmental enquiry on same facts or charges — (i) When can be made............................................................................................. 311 (ii) When cannot be made ...................................................................................... 311

22. Whether a Departmental Enquiry can be Ordered Subsequent to the Recording of an Adverse Annual Confidential Report on the Identical or Substantially on the Same Materials ................................................................................................................................ 311 23.

Executive instruction, breach of ................................................................................. 312

24 .

Evidence Act, application of ...................................................................................... 312

25 .

Technical rules of evidence do not apply to these proceedings ................................... 312

26.

Evidence of co-delinquent can be considered.............................................................. 312

27

Evidence, hearsay: issibility of ............................................................................ 313

28.

Evidence, whether hearsay .......................................................................................... 313

29.

Evidence: (i) Tape-recorded conversation .. ................................................................ 314 (ii) Handwriting expert ................................................................................................ 314

30.

Misconduct, to be deemed condoned on promotion .................................................... 315

31. Article 311 of the Constitution, provides protection to persons employed in civil capacities under the Union or States ...................................................................................... 315 32

Enquiry be held in accordance with the principles of natural justice ......................... 316

33.

Natural justice: Principle of ........................................................................................ 316

34.

Natural justice: requirement of ................................................................................... 319

35.

Natural justice, rules of .............................................................................................. 319

36.

Natural justice, non-observance of principles or rules of ........................................... 320

37.

Compliance with each of the requirements laid down in the rule: necessary — (i) Court has to see the procedural irregularity ...................................................... 321


R. 14]

(ii) Court not to re-examine and reassess evidence ................................................ 322 (iii) Principles of interference with departmental enquiry by court ........................ 323 (iv) Perverse findings ............................................................................................. 325 38.

Reasonable opportunity, meaning of .......................................................................... 325

39.

Departmental enquiry - holding of ............................................................................. 326

40.

Departmental enquiry to deter civil from perusing his legal remedies ....................... 326

41.

Departmental enquiry not an empty formality............................................................ 327

42.

Departmental proceeding, a two sided affair ............................................................. 327

43.

Order sheet be maintained, showing the progress of the inquiry from day to day ..... 327

44.

Procedure where statute silent ................................................................................... 327

45. No regular departmental inquiry is required while imposing penalty in certain cases ... 328

Sub-rule (1) 46. (i) No major penalty can be imposed without an enquiry ............................................... 328 47

(ii) Interpretation of expression “as far as may be” in sub-rule (1) ................................ 329

Sub-rule (2) 48

Who should be charged ? ............................................................................................... 329

Sub-rule (3) & (4) 49. Charge-sheet by officer performing current duties ......................................................... 329 50. Charge to be drawn up by competent authority .............................................................. 329 51. Charge should be clear ................................................................................................... 330 52

Charges must be specific, precise and not vague............................................................ 330

53. Necessary particular must be given in charge-sheet ....................................................... 331 54. Charge-sheet should not be issued with a biased and closed mind ................................. 331 55. Charge based on finding of Commission of Inquiry rendered behind the back of appellant, quashed .................................................................................................................. 331 56. Charge based on the findings and recommendations of Vigilance Deptt. ....................... 332 57. Charge not to be based on suspicion ............................................................................... 332 58. Charge-sheet described as Memo .................................................................................... 332 59. Expression of opinion in charge-memo ........................................................................... 332 60. Mention of proposed punishment in charge-sheet ........................................................... 332 61. Actual service of chargesheet .......................................................................................... 333 62. Delay in service of chargesheet ....................................................................................... 333 63. Judicial review of chargesheet ........................................................................................ 333 64. Malafide chargesheet ...................................................................................................... 335 65. Non-compliance of Rule 14(4) ........................................................................................ 335 66. Non-supply of copy of compliant .................................................................................... 335 67. Non-supply of copy of report, basis of charge ................................................................ 336

297

298


[R. 14

68. Non-supply of statement of allegations ........................................................................... 336 69. When copies of proceedings and findings of preliminary enquiry be supplied ............... 337 70. Whether copies of documents shown in the list of documents should be delivered to delinquent, along with the charge-sheet ................................................................................. 337 71. “Whether desired to be heard in person”, valuable right ................................................. 338 72. Opportunity to explain to be real .................................................................................... 338 73. Rights of employee during enquiry ................................................................................ 338

Sub-rule (5)(a) 74. Revival of proceedings after long lapse of time, dropped .............................................. 338

Sub-rule 5(a) & (b) 75. Disciplinary authority holding enquiry himself, bias of ................................................. 338 76. Enquiry officer, appointment of ...................................................................................... 339 77. Enquiry officer, against whom petitioner has accusation ................................................ 339 78. Enquiry officer, bias of.................................................................................................... 340 79. Enquiry officer who held preliminary enquiry ................................................................ 340 80. Enquiry officer, prejudice of ........................................................................................... 341 81 Enquiry officer to act with detachment ........................................................................... 341 82. Enquiry officer to have open mind .................................................................................. 341 83. Enquiry officer not to cross-examination defence witnesses ........................................... 341 84. Enquiry officer, whether independent ............................................................................. 341 85. Enquiry officer, used his personal knowledge of facts .................................................... 341 86. Director authorised to conduct enquiry reverted as Dy. Director: No jurisdiction to hold enquiry .................................................................................................................................. 341

Sub-rule 5(c) 87. Legal practitioner, meaning of ........................................................................................ 342

Sub-rule (7) 88. Failing to appear for non-payment of subsistence allowance .......................................... 342 89. Failing to appear for non-payment of certain amount of salary ....................................... 342

Sub-rule (8) 90. Assistance of another Government servant: affording of ................................................ 342 91. Assistance by Govt. servant having two pending disciplinary cases on hand ................. 344 92. Approval of disciplinary authority not necessary ............................................................ 344 93. Assistance by retired Government servant ...................................................................... 344 94. Legal practitioner-engagement of, when can be allowed ................................................ 344 95. Legal Practitioner: Payment of fee .................................................................................. 347

Sub-rule (9) 96. ission of facts, whether plea of guilty ...................................................................... 347

R. 14]


97. ission of delinquent officer should be taken as a whole and not only the part thereof .................................................................................................................................... 347

Sub-rules (11), (12) and (13) 98. Sub-rule (11) is a mandatory provisions.......................................................................... 348 99. Whether Govt. servant can take down notes at the time of inspection under sub-rule (11)(i) ..................................................................................................................................... 348 100. Not taking part in enquiry and not appearing in enquiry proceedings ........................... 348 101. Access to file relied upon by enquiry officer be allowed .............................................. 348 102. Claim of privilege, grounds for ..................................................................................... 349 103. Privilege cannot be claimed for — (i) Privilege can be claimed for .............................................................................. 350 (ii) Claim of privilege, affidavit for ........................................................................ 350 104

Documents, withholding of .......................................................................................... 350

105. Documents, supply of copies to public servant ............................................................. 350 106, Whether copies of statements recorded during preliminary enquiry should be supplied to delinquent Government servant ......................................................................................... 352 107. Exhibiting of document during enquiry......................................................................... 353

Sub-rules (14) and (15) 108. Date and place of hearing be informed to delinquent .................................................... 353 109. Language of inquiry ...................................................................................................... 354 110. Enquiry officer not to record evidence on allegation extraneous to the charge ............. 354 111. Enquiry officer, role of .................................................................................................. 354 112. Consideration of confession .......................................................................................... 355 113. Witness, summoning of, for examination or discovery and production of documents .. 355 114. Witnesses, statements of — (i) Charge-wise disapproved................................................................................... 356 (ii) Be recorded in presence of delinquent officer .................................................. 356 115. Witnesses, statement of, in criminal Trial ..................................................................... 356 116. Witnesses, statement of, in preliminary enquiry, use of ................................................ 356 117. Witnesses, before police and statement u/s 161 Cr. P.C. ............................................... 357 118. Witnesses, mentioned in list, right to ask for copies of their statements ....................... 357 119. Witnesses and documents not mentioned in the list, production of ............................... 357 120. Witnesses in of charge, failure to examine material witness ............................ 357 121. Witnesses, adjournment for cross-examination ............................................................. 358 122. Witnesses, cross-examination of - date be fixed ........................................................... 358 123. Witnesses, opportunity be given to delinquent to cross-examine .................................. 358 124. Witnesses, enquiry officer as witness ............................................................................ 358 125. Witnesses, disciplinary authority as witness ................................................................. 358

299

300


[R. 14

126. Witnesses, evidence of an accomplice .......................................................................... 358 127. Additional evidence under Rule 14(15)......................................................................... 359 128. Witnesses, examination after delinquent examined ....................................................... 359

Sub-rules (16) & (17) 129. Sub-rule (16) can be complied with when delinquent takes part in proceedings .......... 360 130. Defence when not required............................................................................................ 360 131. Delinquent cannot claim a particular place for hearing ................................................. 360 132. Defence evidence: opportunity for ................................................................................ 360 133. Defence evidence, right of delinquent officer to produce.............................................. 360 134. Defence evidence, right to produce, denied................................................................... 361 135. Defence witnesses, refusal to summon and examine ..................................................... 361 136. Defence witnesses not examined by Enquiry Officer as they were unwilling to depose for delinquent officer ............................................................................................................. 362 137.Defence witnesses, cross-examination of, by Enquiry Officer ........................................ 362 138. Defence, when no evidence to charge .............................................................. 362 139. Examination of delinquent, several times ...................................................................... 362 140. Examination of delinquent and his witnesses before departmental witnesses, irregular 362 141. Material on record; opportunity to explain to be given to delinquent ............................ 362 142. Material collected and relied upon by Enquiry Officer behind the back of delinquent . 362 143. Extraneous matter, collection and placing of it on record ............................................. 363 144. Enquiry Officer relied upon material not placed on record during enquiry ................... 363 145. Statement not recorded during enquiry not to be relied upon ........................................ 363

Sub-rule (18)363 146. Failure to generally question delinquent officer under Sub-rule 18 .............................. 363

Sub-rule (19) 147. Supply to copy of written brief to Government servant, necessary ............................... 364

Sub-rule (20) 148. Ex prate enquiry on refusal of service ........................................................................... 364 149. Delinquent officer did not participate in proceedings.................................................... 364 150. Delinquent failing to appear for non-payment of subsistence allowance ..................... 365 151. Delinquent failing to appear for non-service with any notice ........................................ 365 152. Sub-rule (11) be complied with even in ex prate enquiry.............................................. 365

Sub-rule 21(a) 153. Disciplinary proceedings initiated by authority competent only to inflict minor penalties ................................................................................................................................. 365

Sub-rule (22) 154. Enquiry de nova on change of enquiry officer .............................................................. 366

R. 14]


301

155. Inquiry Committee: Change in personnel ...................................................................... 366

Sub-rule (23) 156. Proof required in departmental proceedings .................................................................. 366 157. Findings of enquiry officer should be clear and definite ............................................... 367 158. Finding of enquiry officer, recommendations as to punishment.................................... 367 159. Findings of enquiry officer should be based on some evidence .................................... 367 160. Supply of copy of Enquiry report .................................................................................. 367

GENERAL 1. Department Enquiry: What it is? — A department enquiry under the CCS (CC&A) Rules is not a criminal trial for the imposition of a punishment. Nor it is a proceeding in a court of law. It is not even a lis between two parties which is being decided by a third person. It is only a proceedings instituted by the Government in its capacity as the employer against his employee in his capacity as the employee for the satisfaction of the mind of the Government as to whether the employee has committed misconduct. Such misconduct is merely relevant to the contract of service between the parties. A.R.R. Deshpande v. Union of India, 1971(2) SLR 776 (Delhi), Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Calcutta); D.P. Bijawat v. Union of India, 1994(7) SLR 102 (CAT New Delhi); S.B. Ramesh v. Ministry of Finance, Govt of India, 1994(6) SLR 183 (CAT Hyderabad); T.V.S. Sarma v. Union of India, 1994(7) SLR 137 (CAT Bombay). The departmental enquiry before the Tribunal is not the same as prosecution in a criminal case. State of A.P. v. Chitra Venkata Rao, AIR 1975 SC 2151: 1975 SLJ 772: 1976(1) SLR 653: 1976(2) SCJ 227. See also Krishan Lal v. Union of India, 1993(6) SLR 610 (CAT New Delhi). Standard of proof in a criminal case and departmental enquiry is different. Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3) SCC 628: 1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1995(2) LLJ 633: 1996(2) LLN 451. The inquiry proceedings should not be examined by the court as if it was hearing an appeal in criminal case. Union of India v. A. Nagamalleshwar Rao, AIR 1998 SC 111: 1998(1) SCC 700: 1998(78) FLR 68: 1998(1) SLR 18: 1998 Lab IC 389: 1998(1) LLN 361. See also Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR 1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340. 2. Department Enquiry, a Quasi-judicial proceeding — The obligation to act fairly on the part of the istrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the istrative action has become thin, as pointed out by Supreme Court as far back as 1970 in A.K. Kraipak v. Union of India, 1969 (2) SCC 262. Enquiries which were considered istrative at one time are now being considered as quasi judicial in character. Even an istrative order which involves

302


[R. 14

civil consequences must be made consistently with the rules of natural justice. State of Orissa, v. Binapani Dei (Dr. Miss), 1969(1) SCWR 1122: AIR 1970 SC 150: 1970(1) SCR 457: 19698(2) SCC 262: 1969 SLR 445; Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277:1978(3) SCR 708: 1978(3) SCC 366: 1978 Lab IC 1106: 1978(2) SLR 46: 1978 SLJ 591. See also Union of India v. K.K. Dhawan, 1993(1) SCR 296: 1993(2) SCC 56: 1993(1) JT 236 (SC): AIR 1993 SC 473: 1993 Lab IC 1028: 1993(2) ATC 1: 1993(1) Cur LR 415: 1993 SCC (L&S) 325: 1993(1) SLR 700: 1993 AIR SCW 1361: 1993(1) SPJ 396; S. Sundarsan v. Union of India, 1996(8) SLR 347 (SC). istrative action is stated to be referable to broad area of Government activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or istrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. See State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work “Judicial Review of istrative Action” 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant consideration, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into and where an authority hands over its discretion to another body it acts ultra vires. Indian Railway Construction Co. Ltd. v. Ajay Kumar, 2003(4) SCC 579: 2003(2) JT 295: 2003(2) SLR 639: 2003(2) LLJ 150. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attract the, principles of natural justice. Union of India v. Ramzan Khan (Mohd), 1990 Supp (3) SCR 248: AIR 1991 SC 471: 1991(1) SCC 588: 1990(4) JT 456: 1991(78) FJR 207: 1991(1) ATR 120: 1991(16) ATC 505: 1991(1) LLN 380: 1990(61) FLR 736: 1991(1) SLR 159: 1991 Lab IC 308: 1991(1) LLJ 29: 1991(1) SLJ 196.

R. 14]


303

3. Disciplinary Enquiries, Form and procedure of — There is not set form of disciplinary enquiries. In some cases oral evidence may have to be led when witnesses are called to give evidence and are offered for cross-examination. But in other cases that may not be the appropriate mode of enquiry. Where an Income Tax Officer was charged on the basis of his assessment orders, the various flaws in the assessment were pointed out to him, his answers recorded and opportunities were given to explain the circumstances against him, it was held that there can be no compliant on the score that there was no personal hearing or that reasonable opportunity to defend was not given. Krishna Chandra Tandon v. Union of India, 1974 SLJ 415: 1974(2) SLR 178: AIR 1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010. Where the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer-constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services. Chandra Prakash Shahi v. State of Uttar Pradesh, AIR 2000 SC 1706: 2000(3) SCR 529: 2000(5) SCC 152: 2000(2) SLR 772: 2000(3) SLJ 312: 2000(3) LLN 21: 2000(97) FJR 135. 4. Disciplinary Enquiries: Personal hearing if necessary — When reply filed by the employee to show cause notice did not state that he desires personal hearing, it was held that order of termination cannot be held to be vitiated on the ground that opportunity of personal hearing was not granted. State Bank of India v. Luther Kondhpan, 1999(9) SCC 268: 2000(1) LLJ 275: 2000(2) LLN 66. 5. Disciplinary proceedings against several employees— It is always necessary and salutary that common enquiry should be conducted against all the delinquent officers to avoid multiplicity of proceedings, needless delay from conducting the same and overlapping abduction of evidence or omission thereof and conflict of decision in that behalf. Balbir Chand v. Food Corporation of India Ltd., AIR 1997 SC 2229: 1996 Supp (10) SCR 156: 1997(3) SCC 371: 1997(1) SLJ 156: 1997(2) LLJ 879: 1997(77) FLR 267: 1997(3) LLN 82: 1998(79) FLR 494: 1997(1) SLR 756. In the aforesaid case it has been further held that enquiry should normally be not split even on the request of the delinquents. It was observed “If one charged officer cites another charged officer as a witness, in proof of his defence, the enquiry need not per se be split up even when the charged officers would like to claim an independent enquiry in this behalf. If that procedure is adopted, normally all the delinquents would be prone to seek split up of proceedings in their/his bid to delay the proceedings, and to see that there is conflict of decisions taken at different levels. Obviously, disciplinary enquiry should not be equated as a prosecution for an offence in a criminal Court where the delinquents are arrayed as co-accused. In disciplinary proceedings, the concept of co-accused does not arise. Therefore, each of the delinquents would be entitled to summon the other person and examine on his behalf as a defence witness in enquiry or summon to cross-examine any other delinquent officer if he finds him to be hostile and have his version placed on record for consideration by the disciplinary authority. Under

304


[R. 14

these circumstances, the need to split up the cases is obviously redundant, time consuming and dilatory. 6. Disciplinary Proceedings Whether End on Attaining the Age of Superannuation — Disciplinary proceedings cannot continue on the attainment of the age of superannuation as per Mysore Civil Service Rules — Subha Rao v. State of Mysore, AIR 1968 Mysore 81: 1968 SLR 135; K.S. Rajasekhraiah v. State of Mysore, 1968 SLR 269: AIR 1968 Mys 206. In Jagdhari Roy v. State of Bihar, 1969 SLR 152, it was held that in the absence of an express prohibition in any of the service rules, it cannot be said as a proposition of law that, merely because an officer has superannuated, all the departmental proceedings pending against hum must be deemed to have become ineffective. It was further held that the Mysore case cited is based on service rules in force in Mysore State and it cannot be applied mechanically in the State of Bihar. In M. Koteswara Rao v. State of A.P., 1975 Lab IC 1244: 1975(2) SLR 345, it has been held that disciplinary enquiry cannot be initiated or continued after retirement of a Government servant. However, in order to prevent a public servant escaping disciplinary action on attaining the age of superannuation, Fundamental Rule 56-C was amended and it is now provided that a Government servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement, but should be retained in service until the enquiry into the charge is concluded and the final order is ed thereon by the competent authority. See State of Punjab v. Khemi Ram, AIR 1970 SC 214: 1970(2) SCR 657: 1969(3) SCC 28: 1970 Lab IC 271: 1969 SLR 833. Supreme Court, in B.J. Shelat v. State of Gujarat, 1978(2) SCJ 505:AIR 1978 SC 1109: 1978(3) SCR 553: 1978(2) SCC 202: 1978 SLJ 503: 1978(2) SLR 88, a case under Bombay Civil Services Rule 161, read with Fundamental Rule 56(c), held that permission to retire can be withheld if the Government servant is under suspension or the departmental proceedings are pending or contemplated against him. The appellant showed undue favour on the assessee for the purpose of income tax violating the conduct rules under his judicial functions. No immunity is available from disciplinary proceedings. Union of India v. K.K. Dhawan, 1993(1) SCR 296: 1993(2) SCC 56: 1993(1) JT 236 (SC): AIR 1993 SC 473: 1993 Lab IC 1028: 1993(2) ATC 1: 1993(1) Cur LR 415: 1993 SCC (L&S) 325: 1993(1) SLR 700: 1993 AIR SCW 1361: 1993(1) SPJ 396. 7. Disciplinary Proceedings Cannot be Initiated or Continued After Retirement — The law is now well settled that disciplinary enquiry cannot be initiated or continued after the retirement of a Government servant. K.S. Rajasekhraiah v. State of Mys, AIR 1968 Mys 206: 1968 SLR 269; Nawal Kishore v. State of Rajasthan, AIR 1967 Raj 82; M. Koteswara Rao v. State of A.P., 1975 Lab IC 1244: 1975(2) SLR 345; B.J. Shelet v. State of Gujarat, 1978 SLJ 503: 1978(2) SLR 88: AIR 1978 SC 1109: 1978(3) SCR 553: 1978(2) SCC 202: 1978 Lab IC 824; Mukhtiar Chand Dhir v. State of Punjab, 1982(1) SLR 889. See also S. Sundarsan v. Union of India, 1996(8) SLR 347 (SC).

R. 14]


305

There is no provision in CCS (CCA) Rules either to initiate or to continue the departmental proceedings against an erstwhile Government servant who is retired or has been compulsorily retired. However, under Central Civil Service (Pension) Rules, 1972, it is possible to continue the departmental proceedings or to initiate the proceedings under certain conditions. Under the said Rules the President of India can withhold pension or recover pecuniary loss caused to Government if a pensioner is found guilty of grave misconduct or negligence during the period of his service. In case of an event more than four years old on the date of retirement, a departmental proceeding cannot be instituted or continued after retirement under Rule 9(2) of the Pension Rules, 1972. O.P. Gupta v. Union of India, 1981(3) SLR 778; Also see C. Kalyanam v. Government of Tamil Nadu, 1982(1) SLR 25. 8. Fresh Enquiry After Removal from Service — Enquiry was held as a result of which petitioner was removed from service. Petitioner received a memo intimating him that it was proposed to hold a fresh enquiry. The petitioner objected to fresh enquiry. He requested that before holding the fresh enquiry, the order of his removal be set aside and he be reinstated. The petitioner thereafter did not participate in any fresh enquiry. The very fact that the State had decided to hold a fresh enquiry shows that the State had come to the conclusion that the previous enquiry was not proper. The necessary consequence should have been to set aside the previous enquiry because without doing so no fresh enquiry could be conducted under the rules. The petitioner was justified in not participating in the fresh enquiry and insisting that the order of his removal should be set aside before fresh enquiry is held. Dina Nath v. District Medical Officer (Civil Surgeon), 1982(2) SLJ 691. 9. Disciplinary Action Against Employee on Verge of Retirement — Retirement in service under F.R. 56(a) for the purpose of enquiry was not proper and the extension of service was illegal. State of W.B. v. Nripendra Nath Bagchi, 1966(1) SCWR 169: AIR 1966 SC 447: 1966(1) SCR 771: 1968(1) LLJ 270: 1966(2) SCJ 59. There can be no doubt that if disciplinary action is sought to be taken against a Government servant, it must be done before he retires. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to an order of suspension and refuse the public servant to retire and retain him in service till such enquiry is completed and a final order is ed. State of Punjab v. Khemi Ram, AIR 1970 SC 214: 1970(2) SCR 657: 1969(3) SCC 28: 1970 Lab IC 271: 1969(II) SCWR 718: 1969 SLR 833. In one case, in the service rules no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation. Held that in view of the absence of such provisions in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC

306


[R. 14

666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999 Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294. When no disciplinary action is initiated under All India Service Rules while the employee was in service disciplinary action cannot be taken after the retirement of the employee and similar proceedings initiated under State Rules prior to promotion of the candidate to All India Service cannot be continued after such promotion. State of Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB). In another case it was held that the Government can conduct inquiry into misconduct, negligence or financial irregularity even after retirement of an employee. D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442: 1999(1) AD(Delhi) 649: 1999(1) LLJ 871. The enquiry proceedings can be legally continued against the officer even if he has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR 337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB). 10. Disciplinary Action Against Probationer: Who Gave Notice Terminating his Services — The appellant who was a probationer gave a notice to the Government terminating his service. Ever since he served the notice as he was not in service of the Government. Therefore, it was not open to the Government to take any disciplinary proceedings against him. V.P. Gindroniya v. State of M.P., 1970(I) SCWR 294: AIR 1970 SC 1494: 1970(3) SCR 448: 1970(1) SCC 362: 1970 Lab IC 1332: 1970 SLR 329: 1970(2) SCJ 573. 11. Disciplinary Enquiry Against Civilians in Defence Service — The CCS, (CCA) Rules, 1965, are applicable when disciplinary proceedings are taken. They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the service of person covered by these rules are terminated. The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311. And as the opening words of Article 310 show, the doctrine of office held at the pleasure of the President does not apply to cases covered by Article 11. A civilian in defence service is not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disciplinary proceedings are taken against him as the holder of a post “connected with defence”. In other cases of such servants, where no such disciplinary proceedings are instituted, the 1965 Rules, governing procedure for punishments to be imposed, will not apply at all. The legal obligation to apply them to every case of punishment, following from Article 311, is confined to holder of posts covered by Article 311. Union of India v. K.S. Subramanian, AIR 1976 SC 2433: 1977(1) SCR 87: 1976(3) SCC 677: 1976 Lab IC 1551: 1976 SLJ 539: 1976(2) SLR 519; O. Ramchandra Reddy v. Director, Defence Research & Development Laboratory, 1980(1) SLR 490; V.Y. Thomas v. Commandant, A.D.C., 1982(2) SLR 39. See also Krishan Lal v. Union of India, 1993(6) SLR 610 (CAT New Delhi); Ranjit Kumar Majumdar v. Union of India, 1995(5) Supp SCR 717: 1996(1) SCC 51: 1995(1) SCC 51: 1995(8) JT 359: 1996 SCC (L&S) 255: 1996(22) ATC 200: 1996(1) SLR 35 (SC).

R. 14]


307

Departmental proceedings against civilian Government servants in Defence are to be held according to service rules. Sham v. Director, Military Farms, AIR 1968 Pun 312 (FB); P. Lal Dharmalingam v. Chief of General Staff, 1975 SLJ 247. 12. Disciplinary Enquiry Against Judicial Officer — Where the High Court requested the Government to depute Director of Vigilance to hold enquiry, it failed to discharge the duty of preserving control and acted in total disregard of Article 235, Shamsher Singh v. State of Punjab, AIR 1974 SC 2192: 1975(1) SCR 814: 1975(3) SCC 241: 1974 Lab IC 1380: 1974(2) SLR 701. High Court alone can hold enquiry against a member of the Judicial Service and the Government cannot do so. B.R. Guliani v. P&H High Court, 1975(1) SLR 703 (FB); Baldeo Raj Guliani v. Punjab & Haryana High Court, AIR 1976 SC 1633: 1976 SLJ 601: 1976(2) SLR 758; Chief Justice, A.P. v. L.V.A. Dikshitulu, AIR 1979 SC 193: 1979(2) SCC 34: 1979(1) SLR 1: 1978 Lab IC 1672; P. Kumara Menon v. State of Kerala, 1982(1) SLR 104. 13. Preliminary Enquiry Cannot Take the Place of Regular Enquiry — Preliminary enquiry made in presence of civil servant and his explanation taken as well as his defence. Such a preliminary enquiry cannot take the place of a regular departmental enquiry expressly provided under the rules. Removal from service set aside. T.K. Singh v. State of Bihar, 1969 SLR 18; For a regular enquiry the elaborate procedure prescribed by Rule 14 has to be followed. P. Dharmalingam v. Chief of the General Staff, Army Headquarters, 1975 SLJ 247. (i) Article 311 of the Constitution does not Apply to Preliminary Enquiry — Preliminary enquiry is for the purpose of deciding whether or not departmental enquiry is necessary. Article 311 does not apply to such proceedings. Chamak Lal Chiman Lal Shah v. Union of India, AIR 1964 SC 1854: 1964(5) SCR 190; Ram Subhag v. Union of India, 1988(4) SLR 139 Pat (DB). (ii) Preliminary Enquiry does not Debar Regular Departmental Proceedings — If an enquiry is held, at a particular stage to determine whether regular proceedings be drawn up or started, it does not debar a departmental trial. R.C. Sharma v. Union of India, AIR 1976 SC 2037: 1976 Supp SCR 580: 1976(3) SCC 574: 1976 Lab IC 133: 1976(2) SLR 265: 1976 SLJ 516. See also Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Calcutta). 14. Criminal and Disciplinary Proceedings Simultaneously — Not frequently a departmental proceeding and a criminal trial are simultaneously taken. The Courts have held that it would be proper in such a case for the departmental tribunal to stay the proceedings pending decisions by the Criminal Court. while it is not obligatory that the departmental proceedings should be stayed, it is expedient to do so in the interest of fairplay. That does not mean, however, that the finding in the criminal trial must necessarily be adopted by the departmental tribunal. Khushi Ram v. Union of India, 1973(2) SLR 564. See also Rama v. Superintendent of Police, AIR 1967 Mys 220; Delhi Cloth & General Mills v. Khushal Bhan, AIR 1960 SC 706: 1960(3) SCR 1: 1960 Crl LJ 1020, New Victoria Mills v. Presiding Officer, AIR 1970 All 210.

308


[R. 14

Criminal proceedings under the Indian Penal Code, Section 468 and 481 and departmental proceedings for the same misconduct can proceed simultaneously. There is no bar as such. (I) Bhagaban Chowbey v. Union of India, 1987(4) ATC 153 (CAT All). (ii) M.M. Rubber Co. v. S. Natarajan, 1986(1) SLJ 256 Mad (Reviews case-law) (iii) Sufal Kumar Naskar v. Union of India, 1991(1) SLR 658, 662-664 (CAT Cal) (reviews case-law) (iv) Nepal Chandra v. Union of India, 1988(1) SLJ 165. Departmental proceedings and criminal proceedings can go on together, unless there is a stay order in operation. Petitioner was charged with embezzlements of store brass cups. Departmental proceedings, as well as criminal proceedings were initiated against him. He was acquitted in criminal proceedings, but dismissed departmentally. Dismissal was held proper. Laxmi Prasad v. Union of India, 1989(1) SLR (CAT Jabalpur). S.K. Mal Lodha, J., in Jagdish Prasad Khatri v. State of Rajasthan, 1980(1) SLR 225, after going through the various decisions summarised the law thus: “the disciplinary proceedings against a Government servant need not always be stayed in respect of a charge, pending the trial of a criminal case regarding the same charge. In disciplinary proceedings, the question involved is whether employee is guilty of the charge, on which it is proposed to take disciplinary action. The power of taking such action is vested only in Disciplinary Authority and civil and criminal Courts have no such power. Departmental inquiry into the charges against a Government servant can proceed despite the fact that in inquiry into the same charge is pending before a civil or criminal Court. In case of grave nature or involving complicated question of fact or law, it may be advisable to wait for the verdict of a criminal court.” 15. Acquittal or Conviction Whether Bar to Enquiry — It is settled law that where an employee has been convicted or acquitted by a criminal court of any offence under the Penal Code, there is no legal or Constitutional bar on the same set of facts to the departmental inquiry being conducted against him after affording reasonable opportunity. See K.Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24; Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269; Sham Singh v. D.I.G. Police, AIR 1965 Raj 140; Krishna Murthy v. Chief Engineer, S.Rly., AIR 1967 Mad 315; Nand Kishore v. State of Bihar, AIR 1967 Pat 133; Khizar Mir v. Director, Fisheries, 1970 SLR 632; Gurdev Singh v. State of Punjab, 1970 SLR 885; M. Nissar Ahmed v. State of Mysore, 1971(2) SLR 311. In R.P. Kapur v. Union of India, AIR 1964 SC 787: 1964(5) SCR 431: 1966(2) LLJ 164, the Supreme Court had observed: “If the trial of the criminal charges result in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable.”

R. 14]


309

In Bhagwat Charan v. State of U.P., 1973 SLJ 448: 1973(2) SLR 238 and Rajendra Kumar Paul v. Union of India, 1976(2) SLR 295, it was held that if a person has been honourably acquitted by the criminal court, then departmental proceedings on the basis of the same charges are not competent. Full Bench of Allahabad High Court in Kunwar Bahadur v. Union of India, AIR 1969 All 414 (FB), held that, where conviction is set aside on appeal departmental enquiry can be held. The proposition that acquittal in a criminal case does not operate as an absolute bar to a departmental proceeding is now firmly established by authoritative pronouncements and needs no reiteration. Sri Gurunath Pradhan v. State of Orissa, 1979(2) SLR 118; see also Narayan Rao v. State of Karnataka, 1980(3) SLR 182; Mandal Dutt v. Rajasthan State Road Transport Corporation, 1980(3) SLR 371. A Division Bench of Kerala High Court in D.I.G. of Police v. Sankaran, 1982(2) SLJ 537 said, “We once again desire to point out that there would have been no bar to holding disciplinary proceedings on the same set of facts merely because a Criminal Court had in a prosecution found in favour of the officer charged with the offence. But the position is different when the rule making authority has chosen to incorporate rule creating an express bar in continuing such proceedings”. 16. Effect of Order of Acquittal on Departmental Proceeding — The disciplinary authority in departmental proceedings does not violate any rule of law or any other principle of law, when it chooses to ignore the findings of the criminal court and decides to act on the evidence led before him, and ultimately comes to the conclusion that such officer is not fit to be retained in service in spite of his acquittal by the criminal court. He also does not violate any principle of natural justice merely by ignoring such findings after giving full opportunity to the delinquent to have his say. Bhaurao v. State of Maharashtra, 1973 SLJ 92 Bombay: 1972 SLR 699; Narayana Rao v. State of Karnataka, 1980(3) SLR 182: 1981(1) SLJ 18; Also, see Adi Pherozshah v. H.M. Seervai, AIR 1971 SC 385: 1971(1) SCR 863: 1970(2) SCC 484, wherein it was held that findings of any criminal court ordinarily do not operate as res judicata in any civil proceedings. Petitioner was acquitted in criminal proceedings. Disciplinary proceedings were continued. Nature and scope of the criminal proceedings are different from departmental proceedings. Order of acquittal in criminal proceedings cannot ipso facto conclude departmental proceedings. Nelson Motis v. Union of India, 1992(1) Supp SCR 325: AIR 1992 SC 1981: 1992(4) SCC 711: 1992(5) JT 511: 1992(3) SLJ 65: 1992(5) SLR 394: 1992(2) ATR 612:1992 Lab IC 2037:1993(23) ATC 382: 1992 AIR SCW 2304. If the delinquent officer is acquitted in the criminal case whether or not the departmental inquiry pending against him would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the same charges or grounds of evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor its discretion in any way fettered. Corporation of the City of Nagpur v. Ram Chamdra, 1981(3) SCR 22:

310


[R. 14

AIR 1984 SC 626: 1981(2) SCC 714:1981(2) SLR 274 (SC): 1984 Lab IC 194. See also Mohendra Kumar Pradhan v. State of Orissa, 1988(4) SLR 416 Ori, Devi Ram Saini v. State of Haryana, 1991(2) SLR P&H. 17. De Nova Enquiry into Charges of Which Official had been Acquitted — The fundamental principle viz. that no one shall be punished or put in peril twice for the same matter is applicable even to orders ed in departmental enquiries. S.V.G. Iyengar v. State of Mysore, AIR 1961 Mys 37; Prakash Nath Saidha v. Financial Commissioner, 1972 SLR 601 Punjab; Hridaya Narayan Prasad v. State of Bihar, 1975(1) SLR 232; A.Gopala Rao v. Post Master General, Hyderabad, Andhra Circle, 1979(2) SLR 370. De nova enquiry is permissible when the impugned order is set aside for not affording reasonable opportunity, or conducting the disciplinary proceedings in a manner contrary to law and opposed to principles of natural justice or on any technical ground. See Devendra Pratap v. State of U.P., AIR 1962 SC 1334: 1962 Supp(1) SCR 315: 1962(2) SCJ 282; Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454. See also Amal Kumar Roy v. Union of India, 1988(1) SLR 330 (CAT Cal); M. Kolandri Gounder v. Divisional Engineer, T.N.E.B. Thurainur, 1997(1) SLR 467 Mad. 18. De Nova Enquiry Where Penalty Quashed on Ground that Enquiry Officer was Biased Against Delinquent Official — A departmental enquiry had been instituted against the petitioner on a charge that he had misbehaved with a lady police constable. On the basis of the findings recorded in the said inquiry, the petitioner was removed from service. The petitioner filed a suit that the enquiry officer was biased against him and hence the findings recorded by him were in violation of the principles of natural justice. The said plea was accepted and the suit was decreed. Order of removal was set aside. The order was confirmed in first and second appeals. Under such circumstances it is competent for the state to hold a de nova departmental enquiry into the charge as the Courts had not gone into the merits of the charge and had only set aside the proceedings on the ground of procedural irregularity. Mahadev Narasappa v. State of Karnataka, 1981(2) SLJ 421: 1982(1) SLR 656. 19. Disciplinary Authority Whether can Order Successive Enquiries — Rule 15(1) of the CCS (CCA) Rules, 1957 [which corresponds to present Rule 14(1), on the face of it really provides one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 (present Rule 14) for completely setting aside previous inquiries on the ground that the report of the Inquiry Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion. K.R.Deb v. Collector of Central Excise, 1971(1) SCWR 691: AIR 1971 SC 1447: 1971 Supp SCR 375: 1971(2) SCC 102: 1971(1) SLR 29: 1971 Lab IC 945. See also Ch. Jagi Raju v. Bank of India, 1996(5) SLR 627 AP. 20. Re-inquiry When Order Set Aside for not Affording Reasonable Opportunity or on Technical Ground — It is settled law that where the Civil Court or the High Court under Article 226 set aside the order of dismissal or removal on the

R. 14]


311

ground that the Government servant was not afforded reasonable opportunity under Article 311(2), he can once again be proceeded against by the departmental authorities for the charges levelled against him on the same set of facts after affording reasonable opportunity. Where the Civil Court or High Court sets aside the order of departmental authority on technical grounds, the re-enquiry into the same charges on the same set of facts after following the contract procedure and affording opportunity to the employee can be made. K. Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24 (AP): 1971 Lab IC 778; Anand Narain Shukla v. State of M.P., AIR 1979 SC 1923: 1980(1) SCR 196: 1980(1) SCC 252: 1979 Lab IC 1214: 1979(2) SLR 288: 1979 SLJ 528; Union of India v. M.B. Patnaik, 1981(2) SCR 817: 1981(2) SCC 159: 1981(1) SLR 377: 1981 Lab IC 858: AIR 1981 SC 858. In Union of India v. M.B. Patnaik, 1981(1) SLJ 400, the Supreme Court relied on its earlier decision in Anand Narain Shukla”s case but held that it would be inequitable to hold fresh inquiry after a long lapse of time. 21. Second Departmental Enquiry on Same Facts or Chagres - (I) When can be made — See note 14, 14-A, 16. (ii) When cannot be made— In the absence of a specific rule, once a departmental enquiry is over and a public servant is exonerated of the charges on merits, no second departmental inquiry on the same facts can be ordered. K. Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24 (AP): 1971 Lab IC 778; Prakash Nath Saidha v. Financial Commissioner, 1972 SLR 601; Sanjib K. Sen v. Director of ., 1974(2) SLR 478: 1974 SLJ 692; Hridaya Narain Prasad v. State of Bihar, 1975(1) SLR 232; Collector of Customs v. Rebati Mohan Chatterjee, 1976(2) SLR 897; State of Assam v. J.N. Roy, AIR 1975 SC 2277: 1976(2) SCR 128: 1976(1) SCC 234: 1974 Lab IC 1681: 1976 SLJ 1; R.N. Atri v. Union of India, 1979 SLJ 12: 1979(1) SLR 527; Ganga Singh v. State of Punjab, 1982(2) SLR 593. An enquiry was held as a result of which warning had been issued to the petitioner. On the same charges the enquiry proceedings were again started. It was stated on behalf of the state that the earlier was not a formal enquiry but only a fact finding enquiry and the warning issued was not proper. Obviously, the petitioner cannot be punished for the second time for the same lapse or on the same charges. P.Kumari v. State of Punjab, 1982(1) SLR 241. Disciplinary authority dropped the charges which had been initially framed. The dropping was on technical ground. Later, the second proceeding was initiated. It was held that it was not prohibited as per Rule 14, CCS (CC&A) Rules. P. Mallaiah v. S.D.O., Telecommunication, 1982(2) SLR 282 (CAT Hyderabad). 22. Whether a Departmental Enquiry can be Ordered Subsequent to the Recording of an Adverse Annual Confidential Report on the Identical or Substantially on the Same Materials — The answer to the question ed was returned in the affirmative and it was held that a departmental enquiry can lawfully be ordered subsequent to the recording of an earlier adverse annual confidential report, on materials which may substantially be the same. Puran Singh v. State of Punjab, 1981(1)

312


[R. 14

SLR 338: 1981(1) SLJ 586; Bhajan Singh v. Bahal Singh, 1976 SLR 601 and Kartar Singh v. State of Haryana, 1973 Cur LJ 36 overruled. 23. Executive Instructions, Breach of — Executive instructions regarding departmental enquiries are not mandatory but obligatory. Breach of these is not justifiable. Bhupendra Singh v. State of Haryana, AIR 1968 Pun 406. For other view, see Shayam Kumar v. Union of India, 1982(1) SLR 845: 1981(2) SLJ 337. 24. Evidence Act, Application of — (I) Evidence Act has no application to enquires conducted by Tribunals. Union of India v. T.R. Verma, AIR 1957 SC 882: 1958 SCR 499: 1958 SCJ 142; State of Mysore v. Shivabassappa, AIR 1963 SC 375: 1963(2) SCR 943:1964(1) LLJ 24: 1963(2) SCJ 104. See also A.V. Krishnamurthy v. Government of T.N., 1985(1) SLR 773 Mad (DB); B.B. Godhari v. State of Gujarat, 1986(2) SLR 19 Guj. (ii) It may be that in disciplinary proceedings, the technicalities of criminal law cannot be invoked, and the strict mode of proof prescribed by the Evidence Act may not be applied with equal vigour, but the charge framed against the public servant must be held to be proved before any punishment can be imposed on him. State of Madras v. A.R. Srinivasan, 1966(II) SCWR 524: AIR 1966 SC 1827: 1967(15) FLR 104: 1967(1) SCJ 855. 25. Technical Rules of Evidence do not Apply to These Proceedings — The rules of natural justice do not demand strict compliance with the procedure obtaining in regular Courts of Law and the technical rules of evidence do not apply to such proceedings. Basant Kumar Jain v. Union of India, 1969 DLT 599 Delhi; U.R.Bhatt v. Union of India, AIR 1962 SC 1344: 1962 Supp(1) SCR 315: 1962(2) SCJ 282: 1962(1) LLJ 266; Ramesh Chandra v. Union of India, AIR 1967 MP 81; K.L.Shinde v. State of Mysore, 1976 SLJ 468: 1976(2) SLR 102 & 260: AIR 1976 SC 1080: 1976(3) SCR 913: 1976(3) SCC 76; State of Haryana v. Rattan Singh, AIR 1977 SC 1512: 1977(2) SCC 491: 1977 Lab IC 845: 1977(1) SLR 750: 1977 SLJ 408; T.K. Joseph v. Appellate Tribunal, 1981(2) SLR 787; K.K. Bali v. Comptroller and Auditor General, 1982(2) SLR 112; State of Tamil Nadu v. M.A. Waheed Khan, 1998(8) SCC 723: 1999(3) LLJ 710; Lalit Popli v. Canara Bank, 2003(3) SCC 583: 2003(2) LLJ 324. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. Bank of India v. Degala Suryanarayana, AIR 1999 SC 2407: 1999(3) SCR 824: 1999(5) SCC 762: 1999(4) SLR 292: 1999(2) LLJ 682: 1999 Lab IC 2819: 1999(3) LLN 532: 1999(82) FLR 1004: 1999(95) FJR 477: 1999(3) SCJ 168. 26. Evidence of co-delinquent can be considered— In a departmental enquiry, the question, whether or not any delinquent officer is co-accused with other does not arise. That would arise in a prosecution laid for officer under the IPC or Prevention of Corruption Act. The evidence recorded in the departmental enquiry stricto senso is not evidence as per the provisions of the Evidence Act. Therefore, the statement of Palairam also formed part of the record which could be taken into

R. 14]


313

in adjudging the misconduct against the appellant. Vijay Kumar Nigam v. State of Madhya Pradesh, AIR 1997 SC 1358: 1996 Supp (8) SCR 544: 1996(11) SCC 599: 1997(1) SLR 17: 1997(1) CLT 263(SC): 1997(2) LLN 585: 1997(77) FLR 7: 1997(91) FJR 84. 27. Evidence, Hearsay: issibility of — It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. State of Haryana v. Rattan Singh, 1977 SLJ 408: 1977(1) SLR 750: AIR 1977 SC 1512: 1977(2) SCC 491: 1977 Lab IC 845; Zonal Manager, LIC v. Mohan Lal Saraf, 1978(2) SLR 868; State of Haryana v. Ram Chander, 1976 SLJ 689: 1976(2) SLR 690. See also State of Haryana v. Mohan Singh, 1985(2) SLR 116 P&H. 28. Evidence, Whether Hearsay — Section 60 of the Indian Evidence Act lays down that oral evidence must be direct. If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. The evidence before the court can be divided into original and unoriginal. The original is that which a witness reports himself to have seen or heard through the medium of his own senses. Unoriginal, also called derivative, transmitted, second-hand or hearsay, is that which a witness is merely reporting not what he himself saw or heard, not what has come under the immediate observation of his own bodily senses, but what he had learnt respecting the fact through the medium of a third person. Hearsay, therefore, properly speaking is secondary evidence of any oral statement. Balram Prasad Agrawal v. State of Bihar, AIR 1997 SC 1830: 1996 Supp (9) SCR 752: 1997(9) SCC 338: 1997(1) Crimes 10 (SC): 1997 CrLJ 1640: 1997(2) CCR 86(SC): 1997(1) DMC 161: 1997 SCC(Cr) 612. The word “hearsay” is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by some one else. (See Stephen on Law of Evidence). The Privy Council in the case of Subramaniam v. Public Prosecutor, 1956(1) WLR 965 observed: “Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is issible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made. Where the respondent sought to establish in the domestic enquiry that complainant had made a verbal complaint against the delinquent official in the presence of the four witnesses and the evidence of these four witnesses is direct as the complaint is said to have been made by complainant in their presence and hearing; it is not hearsay. J.D. Jain v. Management of State Bank of India, AIR 1982 SC 673: 1982(2) SCR 227: 1982(1) SCC 143: 1982 SCC(Cr) 122: 1982 Lab IC 356: 1982(2) SLJ 96: 1982(1) SCJ 176.

314


[R. 14

Presumption of genuineness attached to newspaper reports cannot be treated as proof of the facts stated therein. Therefore statements of fact in news papers are merely hearsay. Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571: 1999 Supp (2) SCR 339: 1999(7) SCC 435; The contents of such evidence are required to be proved being secondary evidence. Quamarul Islam v. S.K. Kanta, AIR 1994 SC 1733: 1994(1) SCR 210: 1994(1) JT 452. Allegation that the Bus Conductor recovered fare from the enger but did not issue tickets. None of the engers examined in the course of inquiry nor checking staff recorded any statement from any of the enger. Findings of guilt recorded by the Inquiry Officer on the basis of such hearsay evidence is a case of “no evidence” and termination on such report is illegal. State of Haryana v. Bikar Singh, 2002(2) SLR 341 P&H. 29. Evidence: (i) Tape Recorded Conversation — A previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is issible in respect of the other three mentioned matters, under Section 146(1), Exception 2 to Section 158 and Section 155(3) of the Evidence Act. N. Shri Rama Reddy v. Shri V.V.Giri, 1970(1) SCWR 872: AIR 1971 SC 1162: 1971(1) SCR 399: 1970(2) SCC 340: 1971(1) SCJ 483. Where the tape recording could not be deciphered, and was a meaningless jargon, it was not worth reliance. Khembu Ram v. State, 1971 Simla Law Journal 289. (ii) Handwriting expert— Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the itted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts” evidence is not there, Court has power to compare the writings and decide the matter. Lalit Popli v. Canara Bank, 2003(3) SCC 583: 2003(2) LLJ 324. However in another case it has been held that comparison of hand writings by the Inquiry officer does not amount to proof even though the degree of proof required in Disciplinary Proceedings is not of that standard required in criminal case but the suspicion cannot be substituted for proof even in departmental enquiry. Ministry of Finance v. S.B. Ramesh, 1998(3) SCC 227: AIR 1998 SC 853: 1998(78) FLR 700: 1998(1) SLR 618: 1998(2) SLJ 67: 1998 Lab IC 623: 1998(1) LLN 968.


R. 14]

315

30. Misconduct, to be Deemed Condoned on Promotion — It is well settled that a master cannot impose any punishment on a servant for a misconduct which he had condoned. If the lapse or misconduct is one which is known to the authority before the person is promoted and not one which comes to light subsequent to the promotion, and if the authority concerned knowing of this lapse or misconduct promotes the civil servant without any reservation, then it must be taken that the lapse or misconduct has been condoned. Penalty cannot be imposed. L.W. Middleton v. H. Playfair, AIR 1925 Cal 87; District Council, Amraoti v. Vithal Vinayak Bapat, AIR 1941 Nag 125; Lal Audhraj Singh v. State of M.P., 1968 SLR 88: AIR 1967 MP 284; Collector of Customs v. Rebati Mohan Chatterjee, 1976(2) SLR 897; Mohammad Habibul Haque v. Union of India, 1978(1) SLR 637; Union of India v. Md Habibul Haque, 1978(1) SLR 748. Kapileshwar Paswan v. G.M., North Eastern Railway, 1989(5) SLR 799 (CAT Pat). The Supreme Court has however set the matter at rest and held that an employee/officer who is required to be considered for promotion, despite the pendency of preliminary inquiry or contemplated inquiry if having found fit promoted, the promotion so made would not amount to condonation of misconduct which is subject matter of the inquiry. State of Madhya Pradesh v. R.N. Mishra, AIR 1997 SC 3548: 1997 Supp (4) SCR 145: 1997(7) SCC 644: 1997(77) FLR 582: 1997(91) FJR 683: 1997(5) SLR 385: 1998(1) LLJ 436: 1999(1) SLJ 70: 1998 Lab IC 25. 31. Article 311 of the Constitution, Provides Protection to Persons Employed in Civil Capacities Under the Union or a State — Article 311 of the Constitution lays down: Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State — (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges; Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply— (a)

where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b)

where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

316


(c)

[R. 14

where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final]. Article 311(2) of the Constitution which guarantees a reasonable opportunity to a public servant ensures: (a) an opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based, and (b) an opportunity to defend himself by cross-examination the witnesses in of his defence. If reasonable opportunity is not given to a delinquent officer before or at the enquiry and he is prejudiced in raising his defence properly, the proceedings are liable to be quashed. Can it be said the words “reasonable opportunity of being heard in respect of those charges” occurring in and retained in clause (2) of Article 311 would import an opportunity being given after the enquiry is over the finding is recorded and before the imposition of penalty ? Held, the opportunity contemplated in clause (2) can only be opportunity during enquiry and before decision is arrived at in regard to the charges. The opportunity contemplated in clause (2), as it stands now, does not extend to any stage after the completion of the enquiry. Stage of imposition of punishment arises after the completion of the enquiry and the finding is recorded. To such a stage the “opportunity” mentioned in clause (2) of Article 311 as it stands now cannot be related. The right to make a representation after the enquiry and before the imposition of the penalty has been removed by the Constitution (Forty-Second) Amendment Act, 1976. The intendment behind the amendment is clear intention to do away with the second opportunity rule. T.K. Ramakrishnan v. Union of India, 1983(1) SLJ 68. Article 311 applies to all Government servants holding permanent, temporary or officiating post. The protection afforded is limited to the imposition of three major penalties of dismissal, removal or reduction in rank. Ramanatha Pillai v. State of Kerala, 1974(1) SCWR 1: AIR 1973 SC 2641: 1974(1) SCR 434: 1973(3) SCC 330: 1973 Lab IC 1602: 1974(1) SLR 225; Padam Prasad Sharma v. S.N.T. 1982(1) SLJ 431. See also Ram Subhag v. Union of India, 1988(4) SLR 139 Pat (DB). Temporary Government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month”s notice without asg any reason either in of the contract of service or under the relevant statutory rules regulating the and conditions of such service. The Courts can,

R. 14]


317

therefore, life the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. Chandra Prakash Shahi v. State of Uttar Pradesh, AIR 2000 SC 1706: 2000(3) SCR 529: 2000(5) SCC 152: 2000(2) SLR 772: 2000(3) SLJ 312: 2000 (3) LLN 21: 2000 (97) FJR 135. Once a casual employee attains the “temporary” status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by the Article 311 of the Constitution and other Articles dealing with services under the Union of India. See Nar Singh Pal v. Union of India, AIR 2000 SC 1401: 2000 (2) SCR 752: 2000 (3) SCC 588: 2000 (1) LLJ 1388: 2000 (96) FJR 502: 2000 (2) SLR 592: 2000 (3) SLJ 332: 2000 Lab IC 1377: 2000 (2) LLN 407: 2000 (85) FLR 458. Even though the workers may have interest in the manner in which the Company is conducting its business, inasmuch as its policy decision may have an impact on the workers” rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law. Even a government servant, having the protection of not only Articles 14 and 16 of the Constitution but also of Article 311, has no absolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servants can be terminated if posts are abolished. If the abolition of a post pursuant to a policy decision does not attract the provisions of Article 311 of the Constitution. The policy of disinvestment cannot be faulted if as a result thereof the employees lose their rights or protection under Articles 14 and 16 of the Constitution. In other words, the existence of rights of protection under Articles 14 and 16 of the Constitution cannot possibly have the effect of vetoing the Government”s right to disinvest. Nor can the employees claim a right of continuous consultation at different stages of the disinvestment process. If the disinvestment process is gone through without contravening any law, the normal consequences as a result of disinvestment must follow. BALCO Employees” Union (Regd.) v. Union of India, AIR 2002 SC 350: 2002(2) SCC 333: 2002(1) LLJ 550: 2002(1) SCJ 123. 32. Enquiry be Held in Accordance with the Principles of Natural Justice — If inquiring officer adopts a procedure which is contrary to the rules of natural justice the ultimate decision based on his report of inquiry is liable to be quashed. State of U.P. v. Mohammad Nooh, 1958 SCR 595: AIR 1958 SC 86: 1958 SCJ 242; S. Parthasarthi v. State of A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR 697: 1974(3) SCC 459: 1974(1) SLR 427: 1973 Lab IC 1607. See also Union of India v. I.S. Singh, 1994(S2) SCC 518: 1994(28) ATC 53: 1996(1) SLR 229 (SC); B.B. Gupta v. Union of India, 1996(5) SLR 560 (J&K). 33. Natural Justice: Principles of — Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the istration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The istration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which

318


[R. 14

has to determine its form. The expressions “natural Justice” and “legal justice” do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any istrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order ed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is ed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. Canara Bank v. Debasis Das, 2003(4) SCC 557: 2003(3) SLT 729: 2003(2) LLJ 531. Though the precise contours of the principles of the natural justice are not easy to define, in the past it was thought that it included two principles, namely (1) no one shall be a judge in his own, and (2) no decision shall be given against a party without affording him a reasonable hearing. Very soon thereafter a third rule was envisaged and that is that quasi judicial inquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added. A.K. Kraipak v. Union of India, AIR 1970 SC 150: 1970(1) SCR 472: 1969(2) SCC 240: 1969 SLR 445: 1970(1) SCJ 381. See also State Bank of India v. S.S. Koshal, 1994(S2) SCC 468: 1994(27) ATC 834: 1995(5) SLR 181 (SC); Union of India v. B.K. Srivastava, AIR 1998 SC 300: 1998(6) SCC 340: 1997(8) JT 573: 1997(5) SLR 80 (SC). Some settled principles of natural justice for disciplinary proceedings broadly stated are:— (i)

No one to be condemned unheard;

(ii)

Copy of charge be given to delinquent officer intimating the case against him along with list of documents and witnesses by which charge is proposed to be proved;

(iii)

delinquent officer be given reasonable time to submit his written statement;

(iv)

a party should have opportunity of adducing all relevant evidence on which he relies, the evidence of opponent should be taken in his presence and that he should be given opportunity of cross-examining the witnesses examined by that party, no material should be relied against him without his being given an


R. 14]

319

opportunity of explaining them. All relevant copies of documents to which delinquent is entitled must be given to him free of charge to enable him to cross-examination the witnesses; (v)

grant of permission for assistance of lawyer when such assistance is necessary under the circumstances of the case be not refused;

(vi)

there should be no denial of reasonable opportunity to defend;

(vii) proceedings be without bias and not arbitrary, and (viii) copy of report of Inquiry Officer is supplied to delinquent officer. 34. Natural Justice: Requirement of — (1) Reasonable opportunity contemplated under Article 311(2) of the Constitution primarily consist of—. (i)

Opportunity to the concerned officer to deny his guilt and establish his innocence which means he must be told what the charges against him are and the allegations on which such charges are based. The delinquent is entitled to the opportunity to know the materials against him.

(ii)

He must be given reasonable opportunity to have the evidence recorded in his presence and to cross-examine the witnesses examined.

(iii)

He must be given reasonable opportunity to examine himself on other witnesses or his behalf in of his defence;

Khen Chand v. Union of India, 1958 SLR 1081: AIR 1958 SC 300:1958 SCR 1080: 1958 SCJ 497: 1958 SCJ 497; Narayan Misra v. State of Orissa, 1982(2) SLR 506. (2) The necessary requirement of natural justice is a reasonable opportunity to defend. Krishan Chandra Tandon v. Union of India, 1974(2) SLR 178; Ghirrao Srivastva v. State of U.P., 1975(1) SLR 323: 1975 Lab IC 1033. See also A. Palanisamy v. Union of India, 1994(3) SLR 555 (CAT Mad); Sri Budheswar Deka v. State of Arunachal Pradesh, 1994(4) SLR 245 Gau. Tribunal findings rule 14(17) and (18) envisages enquiry officer to conduct separate enquiry, natural justice cannot be said to have been violated. B.C. Rangarajan v. General Manager, Ordinance Factory, Tiruchirapalli, 1988(1) SLJ 521 (CAT Mad). 35. Natural Justice, Rules of — Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by Supreme Court in A.K. Kriapak v. Union of India, AIR 1970 SC 150: 1970(1) SCR 457: 1969(2) SCC 262: 1969 SLR 445: 1969(1) SCWR 1122 “the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it”. Union of India v. Col. J.N. Sinha, 1970(II) SCWR 393: AIR 1971 SC 40: 1971(1) SCR 791: 1970(2) SCC 458: 1971 Lab IC 8: 1970 SLR 748: 1971(1) SCJ 655.

320


[R. 14

36. Natural Justice, Non-observance of Principles or Rules of — An enquiry must be conducted in accordance with the principles of natural justice. What principles of natural justice should be applied in a particular case depends on the facts and circumstances of that case. All that the courts have to see is whether the nonobservance of any of those principles in a given case is likely to have resulted in deflecting the course of justice. State of U.P. v. Om Prakash Gupta, 1970(1) SCWR 139: AIR 1970 SC 679: 1969(3) SCC 775: 1969 SLR 890: 1970 Lab IC 568; A.K. Kraipak v. Union of India, AIR 1970 SC 150: 1970(1) SCR 457: 1969(2) SCC 262: 1969 SLR 445: 1961(1) SCWR 1122; Chandra Bhawan v. State of Mysore, 1969(II) SCWR 750: AIR 1970 SC 2042: 1970(2) SCR 600: 1969(3) SCC 84: 1970 Lab IC 1632. Rules of natural justice are not embodied rules. The question whether in a given case the principles have been violated or not has to be found out on consideration as to whether the procedure adopted by the appropriate authority is in accordance with law or not, and further whether the delinquent knew what the charges he is going to meet. In other words, what is required to be examined is whether the delinquent knew the nature of accusation, whether he has been given an opportunity to state his case and whether the Tribunal has acted in good faith. If these requirements are satisfied then it cannot be said that the principle of natural justice has been violated. Uttar Pradesh State Road Transport Corporation v. Ram Chandra Yadav, AIR 2000 SC 3596: 2000(9) SCC 327: 2000(4) SLR 767: 2000(86) FLR 776: 2001 Lab IC 37. Witnesses asked for by petitioner not produced. Documents asked for by petitioner not even shown to him. Enquiry officer has not stated anywhere that the said documents were irrelevant nor the inquiry officer dealt with the question of production of the aforesaid person as witnesses. Principles of natural justice have been clearly violated. Girwar v. Union of India, 1982(2) SLJ 56. Names of the witnesses already intimated to the delinquent on an earlier occasion, but they could not examined. On the date when they were examined, some more names of witnesses were given in the list to be examined. It was held that this would not constitute a violation of the principle of natural justice. Uttar Pradesh State Road Transport Corporation v. Ram Chandra Yadav, AIR 2000 SC 3596: 2000(9) SCC 327: 2000(4) SLR 767: 2000(86) FLR 776: 2001 Lab IC 37. Where allegation and charges are itted and no possible defence is placed before the authority concerned, interference on the ground of violation of principles of natural justice is not called for. Dharmarathmakara Raibahadur Aroot Rameswamy Mudaliar v. Education Appellate Tribunal, AIR 1999 SC 3219: 1999(7) SCC 332: 1999 Lab IC 3237: 2000(1) LLJ 393: 1999(5) SLR 20: 128: 2000(1) LLN 340. 37. Compliance with each of the Requirements laid down in the Rule: Necessary — (i) The procedure prescribed for enquiry against delinquent public servants as contained in the Rule provides for “reasonable opportunity” as contemplated under Article 311(2) of the Constitution, and therefore, compliance with each of the requirement laid down by the rule should normally be insisted upon, as otherwise reasonable opportunity, which is guaranteed to the public servant under Article 311(2) of the Constitution, may not be ensured to the delinquent whose conduct is under enquiry. Baidhar Das v. State, AIR 1970 Ori 220; A substantive appointment to a

R. 14]


321

permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the Rules at which he is given a fair and reasonable opportunity of being heard. He may also come to lose the post on compulsory retirement. Life Insurance Corporation of India v. Raghavendra Seshagiri Rao Kulkarni, AIR 1998 SC 327: 1997 Supp (4) SCR 207: 1997(8) SCC 461: 1997(77) FLR 782: 1997(5) SLR 774: 1998(2) LLJ 1161: 1998 Lab IC 411: 1998(1) LLN 56: 1998(92) FJR 25. (ii) It is well known that the civil servant has right at different stages of the proceeding. His default at one stage will not take away his right at other stages of the proceedings. Puran Chandra Das v. Chairman, State Transport Authority, Orissa, AIR 1970 Ori 1. (i) Court has to see the Procedural Irregularity — (I) The guarantee under Article 311 is of the regularity of the enquiry. If the enquiry is not vitiated on the ground of any procedural irregularity, the Court is not concerned to decide whether the evidence justified the order. Kshirode Behari Chakarvorty v. Union of India, 1970(1) SCWR 325: 1970 SLR 321; State of A.P. v. Chitra Venkata Rao, AIR 1975 SC 2151: 1976(1) SCR 356: 1975(2) SCC 523: 1975 SLJ 772: 1976(1) SLR 653; Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3) SCR 708: 1978(3) SCC 366: 1978 Lab IC 1106: 1978(2) SLR 46: 1978 SLJ 591. Court”s power of judicial review in such cases is limited and Court can interfere where the authority held the enquiry proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry and imposing punishment or where the conclusion or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached. Food Corporation of India v. A. Prahalada Rao, 2001(1) SCC 165: AIR 2001 SC 51: 2000(5) SLR 600: 2000(87) FLR 899: 2001(2) SLJ 204: 2001 Lab IC 23. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings or in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. High Court of Judicature at Bombay v. Shashikant S. Patil, 2000(1) SCC 416: 1999 Supp (4) SCR 205: AIR 2000 SC 22: 1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ 10: 2000(2) SLJ 98: 2000(1) LLN 317.

322


[R. 14

(ii) Court not to Re-examine and Reassess Evidence — Neither the High Court nor the Supreme Court can re-examine and reassess the evidence in writ proceedings. K.L. Shinde v. State of Mysore, AIR 1976 SC 1080: 1976(3) SCR 913: 1976(3) SCC 76: 1976 SLJ 468: 1976(2) SLR 260: 1976 Lab IC 699; State of Haryana v. Rattan Singh, 1977 SLJ 408: 1977(1) SLR 750: AIR 1977 SC 1512: 1977(2) SCC 491: 1977 Lab IC 845; Kanshi Ram Verma v. Municipal Committee, Mansa, 1981(1) SLJ 203: 1981(1) SLR 290 (SC). In a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of istrative action is feasible and same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequate or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-neigh impossibility to decry availability of judicial review at the instance of an affected person. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, 2001(1) SCC 182: AIR 2001 SC 24: 2000(87) FLR 877: 2001(1) LLJ 583: 2001 Lab IC 11. Quashing of order of dismissal after re-appreciation of evidence by High Court, held, not permissible since High Court is not sitting in appeal over the findings given by the disciplinary authority. Uttar Pradesh State Road Transport Corporation v. Har Narain, 1998(9) SCC 220: 1998(7) JT 437: 1998(80) FLR 928: 1999(3) LLJ 1000; Shirji Vidyalaya v. Patel Anil Kumar Lallubhai, 1998(9) SCC 561: 1999(1) LLJ 1229: 1999(81) FLR 273: 1999(82) FLR 694; Tribunal can not reject enquiry report on the ground no independent witness was produced. Commissioner and Secretary to the Government v. C. Shanmugam, 1998(2) SCC 394: 1998(79) FLR 739: 1998(2) LLJ 290: 1998(3) LLN 603. But at the same time merely dismissing the writ petition on the ground that “findings of the enquiry officer, being findings of fact” cannot be interfered with in writ jurisdiction is too broadly stated. Indeed, scope of judicial review in dealing with such matters is limited but even that limited scope was held to have not been exhausted by the High Court in this case. The matter was therefore remanded for fresh decision. Ram Chandra Shukla v. State of Uttar Pradesh, 2001(4) Scale 439: 2001(6) Supreme 308: 2001(5) SLT 14. Even if another view is possible in the matter, that will not be a ground to interfere with the orders ed in the disciplinary proceedings. Anil Kapoor v. Union of India, AIR 1999 SC 1528: 1998(9) SCC 47: 1999 Lab IC 603: 1999(81) FLR 26. Dissatisfaction with evidence is no ground to interfere with the finding. Secretary to Government, Home Deptt. v. Srivaikundathan, 1998(9) SCC 553: 1998(8) JT 470: 1998(2) LLJ 629: 1998(3) LLN 591: 1999(81) FLR 257. istrative Tribunal re-evaluating and reassessing the evidence before ing the final order by disciplinary authority and holding that the charges levelled against the delinquent were not proved. Such procedure held to be improper and

R. 14]


323

impermissible. District Forest Officer v. R. Rajamanickam, 2000(9) SCC 284: 2001(1) LLJ 1156. Challenge to charge sheet containing allegations based on documents yet to be produced as evidence in the disciplinary proceedings, by way of writ petition under article 226 of Constitution. Held that the charges contained in the charge sheet cannot be held baseless by the High Court before producing the evidence and proving the charges in the disciplinary proceedings. State of Punjab v. Ajit Singh, 1997(11) SCC 368. (iii) Principles of interference with departmental enquiry by court— The Supreme Court has laid down following principles for interference with the Departmental Enquiry— (1) An order ed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order ed. Except cases falling under “no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be ed that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

324


[R. 14

(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance, be that as it may, the order ed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice [rule of audi alteram partem] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/”no hearing” and “no fair hearing”. (a) In the case of former, the order ed would undoubtedly be invalid [one may call it “void” or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem]. (b) But in the latter case, the effect of violation [for a facet of the rule of audi alteram partem” has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No. 5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.

R. 14]


325

See State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669: 1996(3) SCR 972: 1996(3) SCC 364: 1996 SCC(L&S) 717: 1996(2) SLR 631: 1996(2) UJ 338: 1996(1) LLN 819: 1996(2) LLJ 296. (iv) Perverse findings— Where the findings are perverse and are not ed by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, the Courts have power to interfere in the matter. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39. See also Food Corporation of India v. A. Prahalada Rao, 2001(1) SCC 165: AIR 2001 SC 51: 2000(5) SLR 600: 2000(87) FLR 899: 2001(2) SLJ 204: 2001 Lab IC 23. Judicial review of istrative action is feasible and same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequate or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-neigh impossibility to decry availability of judicial review at the instance of an affected person. Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, 2001(1) SCC 182: AIR 2001 SC 24: 2000(87) FLR 877: 2001(1) LLJ 583: 2001 Lab IC 11. A broad distinction has to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. Kuldeep Singh v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp (3) SCR 594: 1999(2) SCC 10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437: 1999(80) ECR 265: 1999(2) LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3) SLJ 111. 38. Reasonable opportunity, meaning of — Reasonable opportunity contemplated by Article 311(2) means “Hearing in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness. Kuldeep Singh v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp (3) SCR 594: 1999(2) SCC 10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437: 1999(80) ECR 265: 1999(2) LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3) SLJ 111 A delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does

326


[R. 14

not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999 Supp (2) SCR 490: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39. 39. Departmental Enquiry: Holding of — Order to hold departmental enquiry. It is not for High Court to declare that the order is invalid. State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723: 1964(3) SCR 25: 1964(2) LLJ 150: 1964(1) SCJ 402; holding of regular departmental enquiry is a discretionary power of the disciplinary authority which is to be exercised by considering the facts of each case and if it is misused or used arbitrarily, it would be subject to judicial review. Food Corporation of India v. A. Prahalada Rao, 2001(1) SCC 165: AIR 2001 SC 51: 2000(5) SLR 600: 2000(87) FLR 899: 2001(2) SLJ 204: 2001 Lab IC 23. There is no such principle of natural justice that before holding of regular enquiry, the disciplinary authority itself should hold a preliminary enquiry by first drawing up a charge memo and then calling for written statement of defence before taking a decision to hold a regular departmental enquiry. Secretary to Government of Tamil Nadir v. D. Subramanyan Rajadeven, 1996 (5) SCC 334. 40. Departmental Enquiry to deter Civil Servant from pursuing his Legal Remedies — Departmental enquiry can be held for a misconduct. The act of civil servants in presenting the writ petition under Article 226 of the Constitution to vindicate their right and their act in persuading the other colleagues to as writ petitioners constitutes no misconduct and the action of the respondents in instituting the disciplinary enquiry cannot but he characterised as arbitrary and capricious. Whoever is responsible for the commencement of such disciplinary proceedings would be committing a contumacious act punishable under the Contempt of Courts Act since what that person would be doing is undoubtedly something by which he intends to deter

R. 14]


327

the civil servant from pursuing his legal remedy which is perfectly entitled to do. V.K. Parameswaran v. Union of India, 1982 Lab IC 383: 1982(1) SLJ 516 Kar. 41. Departmental Enquiry not an Empty Formality — Departmental proceeding is not an empty formality to be completed, but it is serious proceeding intended to give the public servant a chance to meet the charges and to prove his innocence. Jagdish Prasad Saxena v. State of M.B., AIR 1961 SC 1070: 1963(1) LLJ 325; Ram Lal v. Union of India, AIR 1963 Rajasthan 57; Anil Kumar Das v. Superintendent of Post Offices, AIR 1969 Assam 99. 42. Departmental Proceeding a Two-sided Affair — A departmental proceeding is a two sided affair, the officer drawing up the proceedings must be reasonable and helpful in allowing the person who is charge-sheeted to meet the case, equally, the latter must participate, instead of attempting to block the enquiry. Haripada Moitra v. President Calcutta Improvement Tribunal, AIR 1970 Cal 154. See also Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Cal). 43. Order Sheet be Maintained Showing the Progress of the Enquiry from Day to Day — The procedure of enquiry, as laid down under these rules, does warrant a maintenance of an order sheet showing the various orders ed from time to time. In the absence of an order-sheet it is difficult to know whether at the various stages the enquiring officer or the disciplinary authority had followed the procedure without prejudicing any of the rights of the Government servant. Anil Kumar Das v. Superintendent of Post Offices, AIR 1969 Assam 99. 44. Procedure where Statute Silent — There is little hazard in asserting today, that “the duty to act judiciously is implicit in the exercise of the power” to dismiss an employee on charges of misconduct, even though the statute which confers such power is silent about the procedure to be adopted. An inquiry, consonant with the principles of natural justice, must therefore, be held before the statutory power of dismissing an employee could be exercised by the employee. Rama Kant Banik v. District School Board, AIR 1969 Cal 397. The principles of natural justice is the best measure if there is absence of statutory rules or istrative constructions. Asi Mohammad Shri v. Union of India, 1994(1) SLR 637 (CAT New Delhi). But this does not apply to substantive rights. In one case, in the service rules no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation. Held that in view of the absence of such provisions in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC 666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999 Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294.

328


[R. 14

In Jagdhari Roy v. State of Bihar, 1969 SLR 152, it was held that in the absence of an express prohibition in any of the service rules, it cannot be said as a proposition of law that, merely because an officer has superannuated, all the departmental proceedings pending against him must be deemed to have become ineffective. It was further held that the Mysore case cited is based on service rules in force in Mysore State and it cannot be applied mechanically in the State of Bihar. In the absence of a specific rule, once a departmental enquiry is over and a public servant is exonerated of the charges on merits, no second departmental inquiry on the same facts can be ordered. K. Srinivasa Rao v. Director of Agriculture, A.P., 1971(2) SLR 24 (AP): 1971 Lab IC 778; Prakash Nath Saidha v. Financial Commissioner, 1972 SLR 601; Sanjib K. Sen v. Director of ., 1974(2) SLR 478: 1974 SLJ 692; Hridaya Narain Prasad v. State of Bihar, 1975(1) SLR 232; Collector of Customs v. Rebati Mohan Chatterjee, 1976(2) SLR 897; State of Assam v. J.N. Roy, AIR 1975 SC 2277: 1976(2) SCR 128: 1976(1) SCC 234: 1974 Lab IC 1681: 1976 SLJ 1; R. N. Atri v. Union of India, 1979 SLJ 12: 1979(1) SLR 527; Ganga Singh v. State of Punjab, 1982(2) SLR 593. 45. No Regular Departmental Inquiry is Required While Imposing Penalty in Certain Cases — No departmental inquiry is necessary while imposing penalty in the following cases:. (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge; or. (b) Where the authority empowered to dismiss or remove a person, or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry in the manner provided in these rules; or. (c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. Absence of regular inquiry does not invalidate compulsory requirement if— (i) charge sheet is issued and employee shows no response; and. (ii) show cause notice of proposed punishment is issued and no response is received from employee. Bhishmadev Nayak v. Secretary to Govt. Fisheries and Animal Husbandry Dept., Bhubaneswar, 1989(1) SLR 542 (Orissa n. Tribunal). [Please see Commentary under Rule 19.].

Sub-rule (i) 46. (i) No Major Penalty can be Imposed Without an Enquiry — Rule 14(1) provides that no order imposing any major penalty shall be imposed except after an enquiry held as far as may be in the manner prescribed in Rules 14& 15. A regular enquiry is to be held if major penalty is to be inflicted. Narayan Misra v. State of Orissa, 1982(2) SLR 506. See also Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Cal). Stopping of increments with cumulative effect is a major penalty. Therefore

R. 14]


329

enquiry for imposing penalty should be held in of Regulations. Mohinder Singh v. State of Punjab, 1994 (27) ATC 448: 1995 Supp (4) SCC 433. 47. (ii) Interpretation of Expression “As far as may be” in Sub-rule (1) — From a perusal of Rule 14, it appears that an elaborate inquiry is indicated in conformity with what is known as the rules of natural justice. The expression “as far as may be” in sub-rule (1) may it of some variation but not if such a variation leads to the prejudice of the Government servant or results in an ineffective representation of his case before the authority. Anil Kumar Das v. Superintendent of Post Offices, AIR 1969 Assam 99. 48. Who should be Charged — It is for the disciplinary authority to consider who should be charged and who should not be charged. No question of discrimination arises if disciplinary authority was not satisfied that P should be charged along with the petitioner. Bholanath v. Management of D.T.U., 1971(2) SLR 240 Delhi.

Sub-rules (3) and (4) 49. Charge-sheet by Officer Performing Current Duties — Sub-rule (3) provides that the disciplinary authority shall draw up or cause to be drawn up the articles of charge. An officer performing the current duties as a stop gap arrangement cannot exercise the statutory powers under the rules and the charge-sheet by such an officer cannot have any validity, the charge-sheet having not been issued by authority who was entitled to or empowered to issue charge-sheet under the rule. Paresh Chandra Dutta v. Collector of Calcutta, 1979(1) SLR 44, See also K.P. Agarwal v. Union of India, 1994(7) SLR 713 (CAT Jaipur). It is not necessary that charge memo has to be issued only by an appointing authority or an authority holding a higher rank. Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997(2) SCC 708: 1997(1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1. Charge sheet issued by an officer subordinate to the disciplinary authority is valid. Secretary to Government v. A.C.J. Britto, AIR 1997 SC 1393: 1996 Supp (10) SCR 441: 1997(3) SCC 387: 1997(1) SLR 732: 1997 Lab IC 1528: 1997(2) LLJ 388: 1997(3) LLN 8. 50. Charge to be Drawn up by Competent Authority — The memo of charges having been drawn up by an authority not competent in that behalf, the entire proceedings based on such charge memo deserve to be quashed. S. Krishan Nair v. Kerala Public Service Commission, 1982(2) SLJ 170: 1983 Lab IC 24. Under rule 14(3), the charge sheet may be drawn up either by the disciplinary authority himself or upon his order. Hence where the Deputy General Manager signs the charge for the General Manager of the Ordnance Factory, the charge so framed is in conformity with the rule. A.Philip v. Director of General of Ordnance Factories, Calcutta, 1990(2) SLJ 630: 1990(2) ATJ 552: 1990(13) ATC (CAT) 641 Mad. There is no legal or constitutional bar in the appointment of an enquiry officer and a presenting officer simultaneously, with the service of Memorandum on a Government servant, when purporting to hold an enquiry against him pursuant to rule 14(3) CCS (CCA) Rules and before the expiry of time limit specified for submitting a written statement of defence by the Government servant concerned under rule 14(4)

330


[R. 14

unless some prejudice has been caused to the delinquent. R.D.Gupta v. Union of India, 1992(3) SLR 804 (CAT New Delhi) (FB). Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. Held that in the absence of any provision in the Rules expressly taking away the power of appointing authority and disciplinary authority to initiate disciplinary proceedings, framing of charge and conduct of inquiry by such authority and not by the authority competent to impose penalty, is not illegal. Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996 SCC(L&S) 433: 1996(32) ATC 663: 1996(2) SLR 470: 1996(1) UJ 424: 1996(74) FLR 2510: 1996(2) LLN 515: 1997(2) LLJ 191. 51. Charge should be Clear — Charge should be clear and not vague and indefinite. The charge and the statement of facts form part of a single document. Ramanand v. Divisional Mechanical Engineer, AIR 1962 Raj 265; Union of India v. Sri Kula Chandra Sinha, AIR 1963 Tri 20; State of A.P. v. Sree Rama Rao, AIR 1963 SC 1723: 1964(3) SCR 25: 1964(1) SCJ 402. See also K.P. Agarwal v. Union of India, 1994(7) SLR 713 (CAT Jaipur); Sawai Singh v. State of Rajasthan, 1986(2) SLR 47 (SC). Where charge sheet was concise but specific allegations were made against the delinquent which could have been duly understood by the accused person and in fact were understood by him as reflected from his reply to the charge sheet, and also the fact that the delinquent at no stage raised any objection about the same, no infirmity with the disciplinary proceedings can be found. State Bank of Bikaner and Jaipur v. Prabhu Dayal Grover, AIR 1996 SC 320: 1995(6) SCC 279: 1996 Lab IC 210: 1996(72) FLR 1: 1996(1) LLJ 288: 1996(1) SLJ 145. 52. Charges must be Specific, Precise and not Vague — Material allegations be mentioned in charge-sheet or appended to the charge-sheet. In order to afford delinquent a reasonable opportunity for defence as envisaged by the provisions of Article 311(2) of Constitution, he should be informed of the charges levelled against him as well as of the allegations on which such charges are based. These charges should be specific, precise and not vague and should convey to the delinquent official in the clearest possible term the act of misconduct levelled against him. This can be done either by giving the material particulars of the specific act of misconduct in the charge itself or in the statement of allegations appended thereto. This statement of allegations of the charges itself should give an idea of the evidence which is against him. Hari Prasad Singh v. Commissioner of Income Tax, AIR 1972 Cal 27; State of U.P. v. Basish Narain Singh, 1973(2) SLR 297; Ramphal v. State of Punjab, 1968 SLR 213: 1968 SLJ 315: 1968 Cur LJ 174. Where memorandum of charges contained distinct articles of charge accompanied by statement of imputations and list of documents, it was held that the provision stood sufficiently complied. Director General, Indian Council of Medical Research v. Anil Kumar Ghosh, 1998(3) SCR 1034: 1998(7) SCC 97: AIR 1998 SC 2592: 1998(3) CLT 112(SC): 1998(5) SLR 659: 1999(1) SLJ 288: 1998(80) FLR 180: 1999(1) LLJ 1036: 1998 Lab IC 3096: 1998(4) LLN 96.

R. 14]


331

A reading of charges showed that they were not specific and clear. They did not point out clearly the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent alongwith eight other officials indulged in misappropriation by falsification of s. What part did the respondent play, which did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. In this background and the fact that the delinquent was about to be retired, the charge was quashed and directions were not ed for giving particulars of charge. Transport Commissioner v. A. Radha Krishna Moorthy, 1995(1) SCC 332: 1995(29) ATC 112: 1995(1) SLR 239: 1995 Lab IC 1749: 1995(1) LLN 776. However in another case it has been held that if the charge memo is totally vague and does not disclose any misconduct for which the charges have been framed, the Tribunal or the Court would not be justified at that stage to go into whether the charges are true and could be gone into, for it would be a matter on production of the evidence for consideration at the enquiry by the enquiry officer. At the stage of framing of the charge, the statement of facts and the charge sheet supplied are required to be looked into by the Court or the Tribunal as to the nature of the charges, i.e., whether the statement of facts and material in thereof supplied to the delinquent officer would disclose the alleged misconduct. Deputy Inspector General of Police v. K.S. Swaminathan, 1996 Supp (7) SCR 197: 1996(11) SCC 498: 1997(75) FLR 2: 1997(1) SLR 176: 1997(2) LLJ 1011: 1997(3) LLN 289. 53. Necessary particulars must be given in charge-sheet — In the chargesheet no particulars with regard to the date and time of his alleged misconduct of having entered Government forest and hunting a bull in that forest and thereby having injured the feeling of one community by taking advantage of his service and rank were not mentioned. Even the location of the incident in the vast forest was not indicated with sufficient particularity. In the absence of these particulars the official was obviously prejudiced in the matter of his defence at the inquiry. State of U.P. v. Mohd. Sharif, AIR 1982 SC 937: 1982(2) SCC 376: 1982(1) SCJ 223: 1982 Lab IC 1234: 1982(2) SLR 265: 1982(2) SLJ 259. The CAT, Hyderabad has held that rule 14(4), CCS (CCA) Rules is intended to prevent the charges from being vague. Mere technical infraction of the rule (for example for supplying a common list of documents) does not vitiate the proceeding. C. Narayan Charu v. C.S.O., 1987(7) SLR 371. 54. Charge-sheet should not be Issued with a Biased and Closed Mind — It is true that the charges against a delinquent officer must be clear and unambiguous but at the same time the charge-sheet should not be issued with a biased and closed mind. Surendra Chandra Das v. State of West Bengal, 1982 Lab IC 574: 1981(3) SLR 737 and 681. 55. Charge Based on Finding of Commission of Inquiry Rendered Behind the Back of Appellant, Quashed — Disciplinary proceedings were initiated against the appellant on the charge which was purely based on the finding given by the

332


[R. 14

Commission of Inquiry in its report. Findings were given by the commission without giving any opportunity to the appellant to put forward his case in defence. These findings cannot exclusively form the subject matter of any disciplinary enquiry. Writ of mandamus for bearing the Respondents from taking any action against the Appellant based on the report of Commission issued and charge quashed. N. Manoharam v. State of Tamil Nadu, AIR 1981 Mad 147: 1981(1) SLR 417. 56. Charge Based on the Findings and Recommendations of Vigilance Deptt.— The disciplinary authority in reality did not form its own prima facie opinion but was influenced by the finding of the Vigilance Department and having accepted such finding issued the charge-sheet, charge quashed. Surendra Chandra Das v. State of West Bengal, 1982 Lab IC 574: 1981(3) SLR 737 & 681. 57. Charge not to be Based on Suspicion — Where certain charges were based merely on suspicion, it was held that suspicion cannot be made a ground for charging a person with guilt. Paresh Chandra Dutta v. Collector of Calcutta, 1979(1) SLR 44. Sawai Singh v. State of Rajasthan, 1986(2) SCR 957: 1986(3) SCC 454: AIR 1986 SC 995: 1986 Lab IC 855: 1986(2) SLJ 265: 1986(2) SLR 47: 1986(2) ATR 316: 1986(5) ELJ (LS) 16: 1986 SCC (Lab) 662: 1986(2) SCWR 75: 1986(3) SCJ 25. 58. Charge-sheet Described as Memo — Where the charge-sheet was described as a Memo and it showed that it was a Memo issued in connection with disciplinary action, charges were formally framed and the Annexure gave detailed particulars in of the charges, in para 2 of this Memo the appellant was required to show cause in writing as to why he should not be suitably dealt with and para 3 asked him to say whether he would like to produce any evidence in or would like to be personally heard, there is hardly any doubt about the nature of the disciplinary action intended to be taken. It cannot be said that there was no charge-sheet. There is no magic in the word charge-sheet. Krishna Chandra Tandon v. Union of India, 1974(2) SLR 178: 1974 SLJ 415: AIR 1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010: 1975 SCC (Lab) 329. 59. Expression of Opinion in Charge-memo — (I) The expression of an opinion by the enquiry officer in the charge memo that the delinquents had abused their position and brought discredit to the department would vitiate proceedings. P. Sreeramulu v. State of A.P., AIR 1970 AP 114. (ii) Expression of opinion by the Disciplinary Authority in the charge-sheet and the statement of allegations that the petitioner was guilty of the charges framed against him shows that the Disciplinary Authority started with the assumption that the petitioner was guilty of the charges framed against him and hence the disciplinary enquiry was not held with an open and unbiased mind. Keshri Mal v. State of Rajasthan, 1979(3) SLR 1. 60. Mention of Proposed Punishment in Charge-sheet — It is now fairly settled that at the initial stage when charges are framed and served upon the delinquent officer, the punishing authority or the inquiry officer should not propose what punishment ultimately he is to be given. It is always best to avoid indicating punishment in the show cause notice and the charge. Amarnath v. Commissioner, 1969

R. 14]


333

Cur LJ 484; M. Chinnappa Reddy v. State of A.P., AIR 1969 AP 234; Dr. S.S. Prabhu v. Haryana Agriculture University, 1974(2) SLR 285; Meena Janah v. Dy. Director of Tourism, W.B., 1974(1) SLR 466. Whether the punishment which was proposed to be imposed was specified in the charge-sheet, held, it cannot be said that the disciplinary authority conducted the enquiry with an unbiased and open mind. Keshri Mal v. State of Rajasthan, 1979(3) SLR 1. See also D.I.G., Police v. K.S. Swaminathan, 1996(11) SCC 498: 1996(10) JT 140: 1996(8) AD(SC) 728: 1997(1) SLR 176 (SC); Gurcharan Singh v. State of Punjab, 1997(3) SLR 403. 61. Actual service of chargesheet— Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of “Communication” cannot be invoked and “Actual Service” must be proved and established. Union of India v. Dinanath Shantaram Karekar, 1998(3) SCR 933: 1998(7) SCC 569: AIR 1998 SC 2722: 1999(1) SLJ 180: 1998(80) FLR 446: 1998(2) LLJ 748: 1998 Lab IC 3021: 1998(4) LLN 14: 1999(94) FJR 10. 62. Delay in service of chargesheet— The meaning of the word “issued” has to be gathered from the context in which it is used. The decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet is a consequence of the decision to initiate disciplinary proceeding. The service of the charge-sheet on the Government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the Government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the Government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision making process of the authorities for initiating the disciplinary proceedings. The contrary view would defeat the object by enabling the Government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. D.D.A. V. H.C. Khurana, (1993) 3 SCC 196. 63. Judicial review of chargesheet— Justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so based that the inquiry would be a mere farcical show and the conclusion are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion. State of Punjab v. V.K. Khanna, AIR 2001 SC 343: 2001(2) SCC 330: 2000(5) SLR 734: 2001(1) SCJ 439: 2001 Lab IC 391.

334


[R. 14

The question whether charges against an employee are true or false fall within exclusive jurisdiction of inquiry officer and a writ court cannot quash memorandum of charge in the absence of adequate and compelling circumstances. Ajay Kumar Jain v. High Court of Judicature for Rajasthan, 2002(3) SLR 200 Raj (DB). In normal circumstances, the court in exercise of its power under Article 226 will not interfere at the initial stage when show-cause notice only had been issued. However, these are not fetters on the powers of the Court. If the interest of justice so requires, such a power can be exercised. H. Devinder Kumar (Sub Inspector No. 19) v. State of Haryana, 2001(2) SLR 439 P&H (DB). The employee approached the Tribunal merely on the information that the charge sheet was about to be issued to him which in fact was issued during the pendency of the matter before the Tribunal. It was held that the employee had full opportunity to reply to the charge sheet and raise all the points available to him in such reply and the Tribunal ought not to have entertained the application for quashing of the charge sheet at such stage. Union of India v. Ashok Kacker, 1995 Supp (1) SCC 180: 1995(29) ATC 145: 1995(7) SLR 430. Power of High Court to interfere with departmental inquiry is limited where it has been initiated malafide order for oblique and order collateral purpose or no case whatsoever has been made out. Bhajan Ch. Debnath v. State of Tripura, 2002(1) SLR 276 Gau. In case of delay it has been held that Tribunal was right in ordering reinstatement of the employee but it has no power to quash the charges and disciplinary proceedings on the ground of delay alone. Union of India v. Raj Kishore Parija, 1995 Supp (4) SCC 235: 1996 SCC(L&S) 196: 1996(32) ATC 133. In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the truth of the charges or into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. Union of India v. Upendra Singh, 1994(3) SCC 357: 1994(27) ATC 200: 1994(207) ITR 782: 1994(2) SLJ 77: 1994(1) SLR 831: 1994(84) FJR 515: 1994(68) FLR 762: 1994(1) LLJ 808: 1994(1) LLN 895. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delayed into by any Court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the

R. 14]


335

earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affection of such process of law that courts ought to rise up to the occasion. State of Punjab v. V.K. Khanna, AIR 2001 SC 343: 2000 AIRSCW 4472: 2001(2) SCC 330: 2001 SCC(L&S) 1010: 2000(3) JT Supp 349: 2000(5) SLR 734 (SC): 2001(1) ESC 81: 2001(1) Pun LR 262: 2001(1) UPLBEC 280. When charges pertain not only to istrative irregularities but also financial irregularities and disobedience, quashing of preliminary enquiry on the ground of vagueness of allegations is not proper, especially when regular enquiry was yet to be conducted. Held that the learned Single Judge had rightly dismissed the writ petition as premature and it was not proper for the Division Bench to set aside that order and quash the constitution of the Commission of Enquiry and holding of a preliminary enquiry. Held further that it should have been appreciated that it was futile to such an order as the Executive Committee had already taken a decision by that time to hold a regular full- fledged enquiry and appointed an Enquiry Officer for that purpose. Rt. Rev. B.P.Sugandhar Bishop in Medak v. D. Dorothy Dayasheela Ebeneser, 1996(4) SCC 406: 1996(2) SLR 818: 1996 SCC(L&S) 963: 1996(2) LLJ 936: 1996(74) FLR 1927. 64. Malafide chargesheet— A departmental proceeding for a government servant brings untold misery and in the case in hand not only the servant concerned was fined and thereby humiliated in the eyes of his colleagues, friends and relations which he could vindicate only when the Government set aside the same in appeal. It is not expected from a Deputy Commissioner of Police to blindly accept the report of Inspector without even examining the statements recorded him in course of enquiry and had he examined the same, he would not have relied upon the false and frivolous report. While condemning the role of such officials, departmental enquiry, set aside. Najamal Hussain Mehadi v. State of Maharashtra, 1997(1) SCC 532: AIR 1996 SC 2691: 1996(5) SLR 160: 1996(74) FLR 2210: 1997(1) SLJ 149. 65. Non-compliance of Rule 14(4) — A list of all the documents and witnesses by which each article of charges is proposed to be sustained is to be given to the Government servant under rule 14(4). The enquiry is liable to be quashed on the grounds of non-compliance of rule 14(4). H.L. Sethi v. Municipal Corporation, Simla, 1982(2) SLJ 694: 1983 Lab IC 73; Court can give direction for supply of such documents. Deepak Puri v. State of Haryana, 2000(10) SCC 373: 2001(1) LLJ 129. Reliance on a document not annexed to the memorandum of charge for reaching the conclusion of guilt is not proper. Ministry of Finance v. S.B. Ramesh, 1998(3) SCC 227: AIR 1998 SC 853: 1998(78) FLR 700: 1998(1) SLR 618: 1998(2) SLJ 67: 1998 Lab IC 623: 1998(1) LLN 968. 66. Non-supply of Copy of Complaint — Copy of statement which is basis of departmental proceedings not supplied to delinquent officer. Document was necessary to enable him to cross-examine complainant. Order of dismissal set aside, reasonable opportunity to defend having not been given. Kamta Pandey v. State of Bihar, AIR 1970 Pat 23: 1970 Lab IC 53; State of M.P. v. Chintaman Sadashiva, AIR 1961 SC 1623.

336


[R. 14

For denial of opportunity for non-supply of copy of report see Dikshita v. Union of India, AIR 1986 SC 186. See also V. Sammugam v. Union of India, ATR 1986(2) CAT 226. The enquiry officer told the delinquent to secure the copy of complaint on payment of requisite charges. A delinquent officer is entitled to get all the documents and the statements of the witnesses upon which the State wants to reply during the course of the enquiry. Refusal to supply copies without payment is a denial of adequate opportunity to the delinquent officer to defend himself. State of Haryana v. Som Dutt, 1981(1) SLR 647. When the original complaint was not placed on the record, it was held that the absence of original complaint, therefore, indicated that there was, in fact, no complaint in existence. Kuldeep Singh v. Commissioner of Police, AIR 1999 SC 677: 1998 Supp (3) SCR 594: 1999(2) SCC 10: 1999(1) SLR 283: 1999(1) LLJ 604: 1999 Lab IC 437: 1999(80) ECR 265: 1999(2) LLN 74: 1999(81) FLR 630: 1999(95) FJR 80: 1999(3) SLJ 111. 67. Non-supply of Copy of Reports, Basis of Charge — Inspection of report on which charge-sheet was based not allowed and petitioner submitted his reply to charge-sheet without inspecting the record. Copy also not supplied in spite of repeated requests. Impugned order set aside. Trilok Nath v. Union of India, 1967 SLR 759 (SC); State of M.P. v. Chintaman Sadashiv Waishampayan, AIR 1962 SC 1623; Kalyan Singh v. State of Punjab, 1967 SLR 129; Dhup Singh Kanungo v. State of Haryana, 1970 Lab IC 477: 1969 SLR 436. It is true if the preliminary investigation report is not relied on either by the enquiry officer or by the punishing authority, such report is not required to be disclosed to the delinquent as a matter of course. But reasonable opportunity of being heard cannot be defined precisely and such opportunity depends on the facts and circumstances of each case. There are certain documents which even if they are not relied by the Enquiry Officer to the charges against the delinquent, such documents are nevertheless required by the delinquent to defend his case. Where the charges were framed on the basis of the Investigation Report and the calculation made by the Investigation Officer in the said Report was referred to in the charge-sheet in the facts and circumstances of the case, the preliminary investigation report should have been furnished to the delinquent to give him reasonable opportunity to defend himself. Dola Gobinda Das v. Union of India, 1981(2) SLR 185. 68. Non-supply of Statement of Allegations — Each charge was so bare that it was not capable of being intelligently understood and was not sufficiently definite to furnish materials to the appellant to defend himself. The statement of allegations on which each charge was based was never supplied to him. Held, the appellant was denied a proper and reasonable opportunity of defending himself. Order of dismissal set aside, Surath Chandra Chakravarty v. State of West Bengal, AIR 1971 SC 752: 1971(2) SLR 103: 1971(2) Lab IC 456; see also Khem Chand v. Union of India, AIR 1958 SC 300; A.K. Narayan Rao v. General Manager, S.Rly., 1969(3) SLR 479; Baidhar Das v. State, AIR 1970 Ori 220.

R. 14]


337

69. When copies of Proceedings and Findings of Preliminary Enquiry be Supplied — Division Bench of Mysore High Court in A.K. Narayan Rao v. General Manager, Southern Railway, reported in 1969(3) SLR 479, held that non-supply of the copies of the proceedings and the findings recorded in the preliminary enquiry which preceded the disciplinary proceedings vitiated the punishment which was imposed on the delinquent official. Case law on the point was discussed by the Punjab High Court in Malvinderjit Singh v. State of Punjab, 1970 SLR 660 (FB) and it was held that a civil servant is not entitled to copy of enquiry report conducted by the Vigilance Department. The Supreme Court in Krishna Chandra Tandon v. Union of India, 1974 SLJ 415: 1974(2) SLR 178: AIR 1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010, has held that these documents are of the nature of inter-departmental communication between officers preliminary to the holding of enquiry and have really no importance unless the Enquiry Officer wants to rely on them for his conclusion. In that case it would only be right that copies of the same should be given to the delinquent. Since neither the Enquiry Officer nor the Disciplinary Authority relied on the preliminary report for his findings, the delinquent was not entitled to its copy. There was a preliminary enquiry before the proceeding was started by issuing a charge-sheet. The report of preliminary enquiry was not given to the petitioner. The report was, however, considered by the enquiry officer in his report. The copy of the report of preliminary enquiry must have been supplied to the petitioner to enable him to cross-examine the witnesses with reference to their earlier statements. Order of dismissal quashed. J.K. Mishra v. Director General of Police, CRPF, 1981(1) SLJ 428: 1981(2) SLR 182. If the petitioner neither requests for copy of statement of witnesses or seeks cross-examination of the witnesses then statements recorded in preliminary enquiry need not be given to the petitioner. K.G.P. Nair v. S.D.O., (Telegraphs), 1990(7) SLR 262, 264, 265 para 10 (CAT Ernakulam). See also Capt. Randhir Singh Bhullar v. State of Punjab, 1997(3) SLR 72; Vijay Kumar Nigam v. State of M.P., AIR 1997 SC 1358: 1996(11) SCC 599: 1997(1) CLT 263 (SC); 1997(1) SLR 17 (SC). There is no rule requiring preliminary enquiry report to be served upon delinquent employee and no prejudice shown to have been caused by non-supply of such report. Held that interference by Tribunal is not called for. Superintendent, Government T.B. Sanatorium v. J. Srinivasan, 1998(8) SCC 572: 1999(3) LLJ 352. 70. Whether Copies of Documents Shown in the List of Documents should be Delivered to Delinquent, along with Charge-sheet — Rajinder Sachar, J. did not agree with the argument that “because copies of documents were not supplied this per se vitiates the enquiry”. He held that availability of copies of documents relied on by department is to give a reasonable opportunity to the employee to defend himself. When all the documents were made available and inspection was done by delinquent, it cannot be said that no reasonable opportunity was given to the delinquent to defend himself. B.L. Kohli v. Union of India, 1974(2) SLR 679. Where the enquiry officer relied on documents which were not mentioned in the list of documents supplied to the charge official, the enquiry was quashed. H.L.Sethi v. Municipal Corporation of Simla, 1982(2) SLJ 694: 1983 Lab IC 73; In another case

338


[R. 14

direction was given to supply the documents. Deepak Puri v. State of Haryana, 2000(10) SCC 373: 2001(1) LLJ 129. When even the documents relied upon by the department in establishing the charge have not been given to the delinquent, the conclusion is irresistible that the delinquent had been denied a reasonable opportunity to defend himself in the proceeding. Pepsu Road Transport Corporation v. Lachhman Dass Gupta, 2002(4) SLR 143 (SC): 2002(1) LLJ 544: 2001(9) SCC 523. 71. “Whether Desired to be Heard in Person”, a Valuable Right — The right “to be heard in person” as provided in rule 14(4) is a valuable right and a denial of this right may result in denial of reasonable opportunity. State of U.P. v. C.S. Sharma, AIR 1963 All 94. 72. Opportunity to Explain to be Real — Opportunity to explain should be real and not ritualistic; effective and not illusory and must be followed by a fair consideration of the explanation offered. Ibrahim Kunju v. State of Kerala, AIR 1970 Ker 65. 73. Rights of Employee During Enquiry — Petitioner was supplied with charge-sheet and was asked to show cause. He did not give any explanation to show cause. He was not given any notice regarding the date of hearing when evidence was to be led on behalf of the employer. Order of dismissal ed by punishing authority held legal. It is well known that delinquent officer has rights at different stages of the proceedings. His default at one stage will not take away his other rights. Puran Chandra Das v. Chairman, State Transport Authority, AIR 1970 Orissa 1; Khem Chand v. Union of India, AIR 1958 SC 300: 1958 SCJ 497: 1958 SLR 1081.

Sub-rule 5(a): 74. Revival of Proceedings After Long Lapse of Time, Dropped — Charges were framed against the petitioner and he submitted his explanations. He also submitted his explanation to the proposed punishment. For about three and half years he did not hear any thing. During the interval, his temporary promotion was regularised. He was also confirmed. Then a communication was received by him to show cause and after receipt of reply, he was reduced in rank. Held, under the circumstances of the case the petitioner is entitled to contend that his earlier explanation must be deemed to have been accepted by the deptt. and the proceedings must be deemed to have been dropped and there was no justification to revive the same. Order set aside. E.S. Athithyaraman v. Commissioner, Hindu Religious and Charitable Endowment, 1971(2) SLR 41: 1971 Lab IC 452: AIR 1971 Mad 170. Though there was delay of 6 years between the occurrences and the inquiry, there was full opportunity given to the appellant who had never taken the plea that the delay had prejudiced him. It was held that inquiry was not vitiated by the delay. G.C. Jain v. Union of India, 1988(7) SLR 256 (CAT Madras).

Sub-rule 5(a) and (b): 75. Disciplinary Authority Holding Enquiry himself, Bias of — Where from all the circumstances it is clear that the petitioner could reasonably have an

R. 14]


339

apprehension that the disciplinary authority who was holding the enquiry himself was biased against him and had made up his mind to punish him, this bias vitiates the entire enquiry proceedings, Brindaban v. State of U.P., 1973(1) SLR 11; Keshri Mal v. State of Rajasthan, 1979(3) SLR 1. 76. Enquiry Officer, Appointment of — An enquiry can only be ordered against a Government servant by an authority competent to take disciplinary action against him. Authority higher to be disciplinary authority cannot appoint enquiry officer. Enquiry held by an officer without proper authority is void. C.D. Prabhu v. Deputy Commissioner, 1969 SLR 362; R.K. Sanayaima Singh v. Chief Commissioner, Manipur, AIR 1965 Manipur 46; Shardul Singh v. State of M.P., AIR 1966 MP 193; R.Suryanarayan v. State of A.P., 1967(2) Andh WR 253; Baldev Singh v. Secretary to Government, Punjab, 1969 SLR 689: 1968 Cur LJ 625. In absence of any prejudice or allegations, order of disciplinary authority should not have been set aside and action of disciplinary authority should not have been quashed only on a technical ground that instead of ad hoc disciplinary authority original/actual disciplinary authority had appointed the enquiry officer. Assistant Superintendent of Post Offices v. G. Mohan Nair, AIR 1999 SC 2113: 1999(1) SCC 183: 1998(9) JT 361: 1998(6) SLR 783: 1999(2) LLJ 986: 1999 Lab IC 2349: 1999(3) LLN 420: 2000(84) FLR 91. In regard to the officer competent to hold inquiry, it was held that the inquiry conducted by an authority subordinate to appointing authority, is not illegal. t Secretary to the Home Department, Madras v. R. Ramalingam, 1996(10) SCC 234: 1996(5) SLR 311: 1996(74) FLR 2525: 1997(1) LLJ 115: 1997(3) LLN 306. 77. Enquiry Officer, Against whom petitioner has Accusation — A person against whom the petitioner had made accusations of misappropriation cannot be made enquiry officer to enquire into the charges against the petitioner. The appointment offends the rules of natural justice. B. Ramchandra Rao v. Registrar, Co-operative Society, 1970 SLR 7 Mysore. There is, a distinction between a defect in the enquiry and a lapse which almost destroys the enquiry. Where the lapse is of the enquiry being conducted by an officer deeply biased against the delinquent or one of them being so biased that the entire enquiry proceedings are rendered void, the appellate authority cannot repair the damage done to the enquiry. Where one of the of the Enquiry Committee has a strong hatred or bias against the delinquent of which the other know not or the said member is in a position to influence the decision- making, the entire record of the enquiry will be slanted and any independent decision taken by the appellate authority on such tainted record cannot undo the damage done. Besides where a delinquent is asked to appear before a committee of which one member is deeply hostile towards him, the delinquent would be greatly handicapped in conducting his defence as he would be inhibited by the atmosphere prevailing in the enquiry room. Justice must not only be done but must also appear to be done. Tilak Chand Magatram Obhan v. Kamala Prasad Shukla, 1995 Supp (1) SCC 21: 1994(28) ATC 750: 1995(5) SLR 809.

340


[R. 14

78. Enquiry, Officer, Bias of — (i) Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially. “If however, “bias” and “partiality” be defined to mean the total absence of pre-conceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, create attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices”, [per Frank J in re: Linahan (1943) 138F 2nd 650, 652]. It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded or reason, and actuated by self interest — whether pecuniary or personal. Because of this element of personal interest, bias is also seen as an extension of the principle of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the Courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred. G.N. Nayak v. Goa University, 2002(1) SCR 636: AIR 2002 SC 790: 2002(2) SCC 712: 2002(1) SCJ 497: 2002(2) SLJ 308. (ii) The function of an Enquiry Officer is that of a judge dealing with a case. Such an officer should not be personally interested in the matter. He should be a person having an open mind, a mind which is not biased against the charged officer. K. Sundra Rajan v. Dy. Inspection General of Police, 1973 SLJ 100: 1972 SLR 723. In a departmental enquiry if the delinquent officer reasonably apprehended that the Enquiry Officer was biased against him, the entire enquiry proceedings were vitiated. Brindaban v. State of U.P., 1973(1) SLR 111; Balwant Rai Mahajan v. V.P. Khosla, 1979(1) SLR 391. (iii) The Commissioner (Enquiry Officer) in one of his letter stated that he had heard witnesses and satisfied himself that Sharma was definitely corrupt. He was biased. State of U.P. v. C.S. Sharma, 1967(II) SCWR 648: AIR 1968 SC 158: 1967(3) SCR 848: 1969(1) LLJ 509: 1968 Lab IC 190: 1968(1) SCJ 262; Rai Bahdur Singh v. S.D.O., 1975 Lab IC 682. (iv) If a reasonable man would think on the basis of the existing circumstances that the enquiry is likely to be prejudiced, that is sufficient to quash the decision. Parthasarthi v. State of A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR 697: 1974(3) SCC 459: 1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286. (v) Bias has to be established either by evidence or on the materials on record which are relied upon by the Enquiring Officer in coming to his conclusion about the guilt of the delinquent. Syed Rahimuddin v. Director General, C.S.I.R., 2001(9) SCC 575: 2001(3) JT 609: AIR 2001 SC 2418: 2001(2) LLJ 1246: 2002(4) SLR 165: 2001 Lab IC 2367. 79. Enquiry Officer who held Preliminary Enquiry — Officer who held preliminary enquiry was appointed enquiry officer. This cannot be indicative of bias against the civil servant. Govind Shankar v. State of M.P., AIR 1963 MP 115.

R. 14]


341

80. Enquiry officer, Prejudice of — The fact that the punishing authority considered the report and comes to his own conclusion would not cure the defect attached to the enquiry conducted by an officer having bias against the charged officer. The entire proceedings would be vitiated as its foundation is itself vitiated by the bias of Enquiry Officer. K. Sundera Rajan v. Dy. Inspection General of Police, 1973 SLJ 100: 1972 SLR 723. 81. Enquiry Officer to Act with Detachment — Enquiry officer must act with the detachment of a judge, since he is professing to exercise that dignified function. Choudhary v. Union of India, AIR 1956 Cal 602; P. Sreeramulu v. State of A.P., AIR 1970 AP 114. 82. Enquiry Officer to have Open Mind — The rule of natural justice is that bias vitiates the finding. Enquiry officer selected should be a person with an open mind. An open mind should be kept with regard to charges made against a Government servant until the charges are proved. Rao Rallapalli Suryanarayna v. State of Andhra Pradesh, 1968 SLR 77; Amar Nath v. The Commissioner, 1969 Cur LJ 484. 83. Enquiry Officer not to Cross-examine Defence Witnesses — Cross examination of defence witnesses by the Enquiry Officer was in plain violation of the principles of natural justice and consequently the inquiry proceedings were vitiated. Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454: 1981(1) SLJ 388. 84. Enquiry Officer, Whether Independent — Mere fact that enquiry officer is subordinate to the disciplinary authority is no indication of the fact that he could not form his own independent judgement and was under the influence of his superior. Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269; Ram Naresh Lal v. State of U.P., AIR 1967 All 384. 85. Enquiry Officer, Used his Personal Knowledge of Facts — Because enquiry officer has prior knowledge of the facts on which the charges have been drawn, bias can not be alleged. Anil Behari Saran v. State of Bihar, AIR 1967 Pat 43. Where the enquiry officer has taken into consideration his personal knowledge about the petitioner while deciding as to whether petitioner is guilty of charges levelled against him, held, this is a serious defect in conducting the enquiry against the petitioner. If the enquiry officer wanted to use his personal knowledge, he should have offered himself as a witness, so that the petitioner could have cross examined him. Satya Prakash Varshney v. Union of India, 1980(3) SLR 64; Ambala Board of Education v. Beant Singh, 1982(2) SLR 317. 86. Director Authorised to Conduct Enquiry Reverted as Dy. Director: No Jurisdiction to Hold Enquiry — Government only authorised the Director to conduct the enquiry. When Director reverted as Deputy Director he examined all witnesses, completed the enquiry and had drawn up the report of enquiry when Government ordered that Deputy Director might continue the enquiry. The Director could not delegate the power to Deputy Director to continue the enquiry. The Inquiring Officer (Dy. Director) had no jurisdiction to conduct the enquiry. S. Parthasarth v. State of A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR 697: 1974(3) SCC 459: 1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286.

342


[R. 14

Sub-rule (5)(c). 87. Legal Practitioner, Meaning of — “Legal Practitioner” means advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent” “advocate” means an advocate entered in any roll under the provisions of Advocates Act, 1961; “attorney” include a solicitor (Section 2, Advocates Act, 1961).

Sub-rule (7). 88. Falling to Appear for Non-payment of Subsistence Allowance — Appellant was suspended and was called upon to appear before Enquiry Officer. He made representations to the Government and the Enquiry Officer that he was not being paid subsistence allowance and on that he was unable to appear at the place of enquiry which was five hundred miles away from the place he was residing. Enquiry held ex prate and he was dismissed. Held, the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings and the order of dismissal cannot stand. Ghanshyam Das Shrivastava v. State of M.P., 1973(I) SCWR 391: AIR 1973 SC 1183: 1973(1) SCC 656: 1973(1) LLJ 414: 1973 SLJ 356: 1973(27) FLR 466; however, see Banshidhar Panigarhi v. State of Orissa, 1975(2) SLR 725. Non-payment of subsistence allowance from the date of suspension till removal and employee not appearing in departmental enquiry and giving financial crunch on of non-payment of subsistence allowance and illness as reason for not participating in Disciplinary Proceedings. Held that it was a clear case of breach of principle of natural justice on of denial of reasonable opportunity to delinquent to defend himself in the departmental enquiry. Jagdamba Prasad Shukla v. State of Uttar Pradesh, AIR 2000 SC 2806: 2000(7) SCC 90: 2000(2) LLJ 1513: 2000 Lab IC 3111: 2000(5) SLR 164: 2000(87) FLR 1: 2000(97) FJR 304. 89. Failing to Appear for Non-payment of Certain Amount of Salary — Petitioner was in enjoyment of his full salary of Grade II. He did not participate in the enquiry because he was not given the pay of Grade I difference approximately Rs. 25 to Rs. 30 p.m. Not sufficient reason for absenting from enquiry. Naseeruddin Nazar v. State of Rajasthan, 1977 SLJ 182: 1977(1) SLR 696; Ghanshyam Das Shrivastava v. State of M.P., 1973(I) SCWR 391: AIR 1973 SC 1183: 1973(1) SCC 656: 1973(1) LLJ 414: 1973 SLJ 356: 1973(27) FLR 466, distinguished.

Sub-rule (8). 90. Assistance of Another Government Servant: Affording of — Enquiry Officer did not afford the appellant necessary facility to have the assistance of another Government servant in defending him which assistance he was entitled to under the rule. Reasonable opportunity to defend himself not afford. C.L. Subramaian v. Collector of Customs, 1972(1) SCWR 540: AIR 1972 SC 2178: 1972(3) SCR 485: 1972(3) SCC 542: 1973(2) SCJ 488: 1972 Lab IC 1049: 1973(26) FLR 170: 1972(1) LLJ 465. Clause (8) has been made for the benefit of the charged Government servant in case he wants to take the assistance of another Government servant in order to enable himself to defend properly. It is not mandatory for the authorities to provide the

R. 14]


343

assistance to an employee of a person of his choice alone. In case the choice made by a Government servant is such that it is not possible or practicable for the Government to comply with the said request of Government servant, then it cannot be held that clause (8) has been violated. This clause is directory and not mandatory. Under this clause if a Government servant cannot take the assistance of any other Govt. servant, then right has been given to him to apply before the disciplinary authority for providing assistance of a legal practitioner. After considering the facts and circumstances of the case it is open to the disciplinary authority to provide such assistance to the charged servant. The extent of the right of a charged employee to get the assistance of another Government servant or that of a lawyer depends upon the facts and circumstances of each case. Mahabir Singh Gaur v. Union of India, 1978 SLJ 690: 1979(1) SLR 245; Krishna Gopal Sharma v. Union of India, 1979(2) SLR 839. The respondent engaged the service of M, another Government servant in whose presence two witnesses for prosecution were examined. Thereafter, M. resigned from Govt. service and took up legal practice. Respondent repeatedly requested for permission to engage the service of M, but the departmental authorities refused the permission. Held, the respondent will be allowed to engage the service of Commissioner of IncomeTax v. Rabindra Nath Chatterjee, 1979(1) SLR 134 (SC). Where the department is represented by a presenting officer and the delinquent is a class IV officer who may not be able to understand technicalities, the delinquent must be informed that he is entitled to be defended by a Government servant. If he is not informed, and the overall view shows that he is at disadvantage the inquiry is vitiated. Bhagat Ram v. State of U.P., 1983(1) SLR 626 para 5 (SC). The law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right representation by some body else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognize such a right and provide for such representation. Irrespective of the desirability or otherwise of giving the employees facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself. Held that denial of representation by an employee against whom two disciplinary matters were pending held to be not arbitrary. Indian Overseas Bank v. Indian Overseas Bank Officers” Association, 2001(9) SCC 540: 2001(8) JT 306: AIR 2001 SC 4007; See also N. Kalindi & Ors. v. M/s Tata Locomotive & Engineering Co. Ltd., AIR 1960 SC 914, Dunlop Rubber Co. (India) Ltd. v. Their Workmen, AIR 1965 SC 1392; Crescent Dyes & Chemicals Ltd. v. Ram Naresh Tripathi, 1993(2) SCC 115; Bharat Petroleum Corpn. v. Maharashtra General Kamgar, 1999(1) SCC 626. Assistance of a friend to the choice of the employee granted in the course of departmental inquiry but request for assistance of friend before the State Government in the revision/appeal was denied. Held that denial of assistance violate principles of

344


[R. 14

natural justice and therefore, order of termination is illegal. Surjit Singh Kirpal Singh v. State of Gujarat, 1993(3) SLR 664 Guj. Inquiry officer allowed representations of employee by a person employed in different division but denied opportunity to be represented by a person in same Division. Held that principles of natural justice were not violated by Inquiry Officer. Life Insurance Corporation of India, Bombay v. Subhash N. Ghodke, 1999(5) SLR 369 Bom. 91. Assistance by Government Servant having Two Pending Disciplinary Cases on Hand — Declining for assistance by Govt. servant having two pending disciplinary cases on hand cannot be said denial of reasonably opportunity to delinquent official under Rule 14(8). Issac Joseph v. Senior Supdt. of Post Offices, Ernakulam, 1982(2) SLR 269: 1983 Lab IC 145. 92. Approval of Disciplinary Authority not Necessary — Government servant can take the assistance of any other Govt. servant to present the case on his behalf. The approval of Disciplinary Authority is not necessary. K. Santhanam v. Union of India, 1969 SLR 752: 1970 Lab IC 98 Mysore. This is subject to Note to Rule 8(a) and sub-clause (b) to Rule 8. 93. Assistance by Retired Government Servant — A Govt. servant can take the assistance or retired Govt. servant subject to the condition that the said Govt. servant retired from the service under the Central Government, at the time of appearance has only two pending disciplinary cases in hand, and that he retired not more than three years ago. A certificate that he had only two cases in hand at that time and a declaration regarding the date of retirement should be filed before the inquiry officer. If the said retired Govt. servant is also a legal practitioner, the restrictions regarding his engagement given in sub-rule (8)(a) would apply to him. 94. Legal Practitioner, engagement of, When can be Allowed — The normal rule in departmental proceedings is that delinquent cannot claim as a matter of right that he should be allowed to be represented by legal practitioner when the presenting officer appointed by disciplinary authority is not a legal practitioner. It will depend on the circumstances of each case whether the denial to be represented by a lawyer amounted to denial of reasonable opportunity. The basic principle is that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the Service Rules specifically provide for the same. The right to representation is available only to the extent specifically provided for in the Rules. Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union, AIR 1999 SC 401: 1999(1) SCC 626: 1999(1) LLJ 352: 1999 Lab IC 430: 1999(1) LLN 654: 1999(81) FLR 358. In Dr. K. Subba Rao v. State, AIR 1957 AP 414, it was observed, “It might be that, in the opinion of the Enquiry officer, the case did not require specialised professional help but from the point of view of the petitioner, it was a serious matter which affected his official carrier and which might, as indeed it has happened in this case, resulted in his dismissal from service, rightly or wrongly when the petitioner was under a reasonable apprehension that the enquiry was the result of preconceived plan and a concerned action on the part of the department, his request for professional help

R. 14]


345

was certainly justified and the enquiry officer should have given him that opportunity. His refusal to accede to that simple request has certainly deprived the petitioner in the circumstances of the case of an opportunity to defend himself”. In Nipendra Singh v. Chief Secretary, Government of West Bengal, AIR 1961 Cal 1, it was held that having regard to the volume of depositions and the number of witnesses and documents, the refusal to allow the assistance of a lawyer to the charged officer notwithstanding that he was himself a District Judge, amounted to denial of reasonable opportunity under Article 311(2) of the Constitution. A Division Bench of Andhra Pradesh while deciding the case: Rao Rallapalli Suryanarayan v. State of A.P., 1968 SLR 77 observed: “We are not able to find any possible reasons why the Enquiry Officer should have rejected such a simple request of the petitioner to engage a lawyer, though the enquiry relates to question of fact nevertheless, the manner in which the enquiry is to be conducted and the scope and intricacies involved in the interpretation of Article 311, are certainly matters on which the petitioner should have the guidance of legally trained person. If the petitioner is not really capable of entering on his defence with the degree of efficiency except with the assistance of a lawyer, any opportunity given to him to defend the case by himself cannot be regarded as an opportunity in real sense of the term.”. In Baidhar Das v. State, AIR 1970 Ori 220, Anti-corruption Inspection was nominated to present case in of charges which was objected to by delinquent but his objection was rejected. The representation of delinquent by lawyer was also not allowed. Large number of witnesses and documents were produced in of the charges. Held, in the facts and circumstances of the case, the disciplinary authority acted contrary to spirit of Article 311(2) of the Constitution. The enquiry was thus vitiated. Venkateswara Rao J. in State of A.P. v. Mohammad Sarwar, 1971(1) SLR 507, observed: “It is true that the question of granting or refusing to grant permission to engage a lawyer is in the discretion of the Enquiry Officer, but this discretion has got to be exercised judiciously and not in capricious manner. Withholding of permission to engage a lawyer in the circumstances of the case cannot for a moment be said to be resulted of proper exercise of the discretion vested in the authority concerned”. The circumstances of the case were that the respondent and another person were facing a t enquiry, a number of witnesses were examined besides making numerous documents in the course of enquiry, the respondent was not a highly educated man and he should have been in a very disturbed state of mind during the enquiry. The Supreme Court in C.L. Subramanian v. Collector of Customs, 1972(1) SCWR 540: AIR 1972 SC 2178: 1972(3) SCR 485: 1972(3) SCC 542: 1973(2) SLR 415: 1972 Lab IC 1049: 1973(26) FLR 170: 1972(1) LLJ 465: 1973(2) SCJ 488, held that the fact that case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scale should be weighed against him. Since disciplinary authority failed to exercise power conferred on it under the rule, there was denial of reasonable opportunity. The Calcutta High Court Division Bench in Director General of Post &Telegraphs v. Nani Gopal Majumdar, 1973(2) SLR 366: 1973 SLJ 852, held that it

346


[R. 14

seems clearly obligatory upon the disciplinary authority to, firstly allow the assistance of a legal practitioner to Govt. servant if the person nominated by the disciplinary authority for presentation of its case is also a legal practitioner; even if it is not so, then also it is equally obligatory upon the disciplinary authority to consider all other relevant circumstances of the case and then either to record or refuse such permission. In other words, even where there is no legal practitioner nominated on behalf of the disciplinary authority, the disciplinary authority is bound to consider the facts and circumstances of the given case before it could refuse permission to engage a legal practitioner to assist the Govt. servant. It would, therefore, be a clear breach of duty on the part of the disciplinary authority if it would refuse to allow the petitioner to engage a legal practitioner only on the view that a legal practitioner was nominated by the disciplinary authority in presenting its own case. See also S.Y. Venkateswaralu v. Director General, 1978 SLJ 434: 1978(2) SLR 309. Where there was no conflict of interest between the appellant and Concurrent finding of Court below Concurrent finding of Court below three other civil servants and the counsel representing the other three civil servants was allowed to represent the appellant and it is not proved that counsel was unable to conduct the defence properly, it cannot be said that the appellant had no reasonable opportunity to defend himself. R. Jeevaratnam v. State of Madras, AIR 1966 SC 651: 1966(2) SCR 204: 1966(II) SCWR 464: 1967(1) SCJ 404. In Hari Prasad Singh v. Commissioner of Income tax, AIR 1972 Cal 27 and Krishna Chandra Tandon v. Union of India, 1974 SLJ 415: 1974(2) SLR 178: AIR 1974 SC 1589: 1974(4) SCC 374: 1974 SLJ 415, the appellant was Income Tax Officer and all he had to do in the course of enquiry was to defend the correctness of the assessments made by him and no witnesses were to be cross-examined. It was held that the refusal to allow the assistance of an advocate did not deprive the appellant of a reasonable opportunity to defend himself. See also, Kishan Gopal Sharma v. Union of India, 1981(1) SLR 775: 1979(2) SLR 839; Sunil Kumar Banerjee v. State of West Bengal, 1980(2) SLR 147: AIR 1980 SC 1170: 1980(3) SCR 179: 1980(3) SCC 304: 1980(40) FLR 434: 1980(2) SCJ 327. In Dr. Tauhid Hossain v. State of West Bengal, 1982(2) SLR 602, the rejection of the request for appointment of a lawyer was not held in violation of principle of natural justice as there was a simple charge of misappropriation of Rs. 100/- only. The above case law should be kept in view by the Disciplinary Authorities and the Enquiry Officers while exercising their discretion to permit or refuse the prayer of delinquent for being represented by a legal practitioner. They should bear in mind that the long drawn out proceedings may be declared null and void by the Court for their failure to exercise the discretion judiciously and carefully. David Annoussamy, Vice Chairman and C. Venkataraman, Member, CAT Madras have held, with reference to rule 14(8)(a), CCS Rules, that where under the rules a Government servant has a right to lawyer, the lawyers” expenses must be paid by the State. S.S. Pandian v. Director of B.C.G. Vaccine Laboratory, 1989(6) SLR 447 (CAT, Madras). The Bench relied, inter alia, on Article 39A of the Constitution used which the State shall secure that the operation of the legal system promotes justice on

R. 14]


347

the basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. As per rule 14(8)(a), CCS (CCA) Rules, it is a right of the Government servant to have a legal practitioner to assist him, if the presenting officer is a legal practitioner. In such a case, the legal practitioner appearing on behalf of the Government servant should be paid by the State. S. Pandain v. Director of B.C.G. Vaccine Laboratory, Madras, 1990(1) SLT 5 CAT, Madras: 1990(13) ATC 659 Mad. Defence assistance appointed with the approval of the inquiry officer is entitled to Travelling Allowance and Daily Allowance for attending the proceedings of the disciplinary inquiry. R.M. Batish v. Union of India, 1989(7) SLR 647 (CAT Chandigarh). When allegations against the Bank officers were simple and not complicated, it was held that denial of assistance of an advocate was not violative of principles of natural justice. Harinarayan Srivastav v. United Commercial Bank, 1997 (4) SCC 384. The enquiry officer has a discretion in the matter of permitting the assistance of an advocate, Unless it is found that the said discretion has been exercised in a perverse manner or that the exercise of discretion is vitiated by a mis-direction in law, no interference is called for under Article 226 with the discretion of the officer. Municipal Corporation of Greater Bombay v. Chhotalal Gajanan Khole, 1996(3) Scale(SP) 26(2). 95. Legal Practitioner: Payment of fee— Where the employee was unable to bear the fee of the advocate engaged by him to defend him in Enquiry, direction given by Tribunal to employer, regarding payment of legal charges payable to his advocate on the same rate as payable to the presenting officer who was also a legal practitioner, was upheld. Director BCG Vaccine Laboratory, Madras v. S. Pandian, 1997(11) SCC 346: 1996(2) LLJ 634: 1996(1) LLN 799

Sub-rule (9) 96. ission of Facts, Whether Plea of Guilty — A person who itted the facts and did not wish to cross-examine any witness or lead evidence on his behalf, on the whole therefore the ission was one of guilty is so far as the facts on which the enquiry was held. Channabassappa Basappa Happali v. State of Mysore, 1971(2) SCR 645: AIR 1972 SC 32: 1971(1) SCC 1: 1971 SLR 9: 1972 Lab IC 1: 1971 SCD 74: 1971(2) SCJ 412 . Where there is no unequivocal ission of the charge, rule 14(9) CCS (CCA) Rules, 1965 must be complied with. Otherwise the inquiry is vitiated. N. Sundaramurthy v. Lieutenant Governor, Pondicherry, 1990(6) SLR 212 (CAT Madras). 97. ission of Delinquent Officer should be Taken as a Whole and Not only the Part Thereof — The ission amounting to confession or not cannot be split up. An ission must be used either as a whole or not at all. Satya Prakash Varshney v. Union of India, 1980(3) SLR 64; State of Punjab v. Sukhdev Singh, 1983(3) SLR 29.

348


[R. 14

Sub-rules (11), (12) and (13) 98. Sub-rule (11) is a Mandatory Provision — Sub-rule (11) cannot be given a go by even in an ex prate enquiry under sub-rule (20). Anil Kumar Das v. Superintendent of Post Offices, AIR 1969 Assam 99. The compliance with the procedure as laid down in Rule 14(11) is not a mere formality. This rule gives an opportunity to a Govt. servant to scrutinise all the prosecution evidence which is likely to be produced against him and it further gave him an opportunity to prepare his defence after looking into the other records which are in possession of Government. Non-compliance with the provisions of this rule is likely to cause prejudice to the case of the Govt. servant and it will amount to denial of proper opportunity to him to defend his case. S.D. Bhardwaj v. Union of India, 1982(2) SLJ 515: 1983(1) SLR 32 HP; H.L. Sethi v. Municipal Corporation, Simla, 1982(2) SLJ 694 HP: 1983 Lab IC 73. 99. Whether Government Servant can Take down Notes at the Time of Inspection under Sub-rule (11)(I) — Rule 14, 11(I) his impliedly provided for allowing the Govt. servant concerned to take down notes of inspection. Such notes may amount to a verbatim copy of the entire document or they may be notes in the true sense of the term. No restriction can be put as to the type of the notes that may be taken of a particular document. The Govt. servant may take such notes either in ink or in pencil as he likes. Union of India v. Inder Nath, 1978(1) SLR 1. 100. Not Taking Part in Enquiry and Not Appearing in Enquiry Proceedings — Where a Government servant against whom proceedings under Rule 14 are taken intentionally absents himself from the enquiry, he cannot make grievance of the fact that he was not given opportunity to cross-examine some witness or that some evidence was not produced in his presence. Bhag Singh Bedi v. Union of India, 1974(2) SLR 687. The petitioner had no confidence in the Enquiry Officer against whom he had a grievance and he had openly told him in writing that he did not accept him as an Enquiry Officer because he was prejudiced, and the averments of the facts which led to the bias or prejudice in the mind of the Enquiry Officer have been given in the petition itself. Petitioner did not participate in the enquiry, that did not mean that the Enquiry Officer was to proceed ex prate. The enquiry from the very inception is vitiated. Balwant Rai Mahajan v. V.P. Khosla, 1979(1) SLR 391. 101. Access to Files Relied Upon by Enquiry Officer be Allowed — Appellant not allowed access to the files which have been relied upon by the enquiring officer in his report to substantiate one of the charges against the appellant. Appellant not given reasonable opportunity of defending himself. S. Parthasarathi v. State of A.P., 1973(II) SCWR 464: AIR 1973 SC 2701: 1974(1) SCR 697: 1974(3) SCC 459: 1974(1) SLR 427: 1973 Lab IC 1607: 1973(2) LLJ 473: 1974 SLJ 286. Where the delinquent wishes to inspect the documents and to cross examine the witnesses, the imposition of punishment without inquiry disregarding the employees demand is illegal. T.C. Ojha v. Union of India, 1990(2) SLR 240 (CAT, Jabalpur).

R. 14]


349

An opportunity must be given to the Government servant to scrutinise all the prosecution evidence likely to be produced against him and to further give him opportunity to prepare his defence after looking into other records in possession of Government. S.D. Bharadwaj v. Union of India, 1983(1) SLR 32: 1982(2) SLJ 515 HP. As per Rule 14(1), CCS (CCA) Rules, the applicant can have inspection of documents proposed to be relied upon by the prosecution. If delinquent does not apply for copies, then not giving the copies is not violation of natural justice. A. Philip v. Director General of Ordnance Factories, Calcutta, 1990(13) ATC 641: 1990(2) SLJ (CAT) 630: 1990(2) ATJ 552 Mad. If the Enquiry Officer relies on a document not referred to in the list supplied to the delinquent the inquiry is liable to be quashed. H.L. Sethi v. Municipal Corporation, Simla, 1982(2) SLJ 694. Written brief of Presenting Officer should be supplied to the delinquent, Collector of Customs v. Mohd. Habibul, 1973(1) SLR Cal 321. Above Calcutta ruling of 1973 has been incorporated in the Government of India, Ministry of Home Affairs, Department of Personnel and n. Reforms O.M.N.O. 11012/18/77 Estt. (A), dated 2nd September, 1978, which itself has been quoted by Mahitosh Majumdar J. in Kanwar Singh v. I.G. Police, C.R.P.F., 1988(4) SLR 575, 576, 577 Cal. 102. Claim of Privilege, Ground for — It is well established that it is a sufficient ground that documents are “State documents” or “official” or are marked “confidential” for a privilege to be claimed by the Government. It would not be a good ground that, if they are produced, the consequences might involve the department or the Government in Parliamentary discussion or in public criticism or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the istration or tend to lay the department open to claim for compensation. The Minister ought not to take responsibility of withholding production except in a case where the public interest would otherwise be damnified, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. Jagannath Dwarkanath Raje v. State of Maharashtra, 1972 SLR 543: 1974 Bom LR 320. See also Niranjan Dass Sehgal v. State of Punjab, 1968 SLR 183: AIR 1968 Pun 255. Obviously, the burden is heavily on the person claiming the privilege to show that a disclosure of the contents of the documents would be gravely injurious to public interest. State of U.P. v. Raj Narain, AIR 1975 SC 865: 1973(3) SCR 333: 1975(4) SCC 428: 1975(1) SLR 541; M.L. Trighatia v. State of Haryana, 1976(1) SLR 20. 103. Privilege cannot be Claimed for — Notings and comments on file pertaining to departmental enquiry. Ram Deo v. State of Haryana, 1978(2) SLR 68. Order of termination of service otherwise than in noting portion of the file. Union of India v. Prakash Lal, 1977(1) SLR 565.

350


[R. 14

Record of Departmental Promotion Committee. Ram Gopal v. Union of India, 1972 SLR 258; N.K. Panda v. Union of India, 1977(1) SLR 575: 1977(2) SLR 589. Record of Meeting of Selection Committee. M.L. Trighatia v. State of Haryana, 1976(1) SLR 20. Service record in proceedings filed by Govt. servant to challenge his compulsory retirement. State of U.P. v. Chandra Mohan Nigam, AIR 1977 SC 2411: 1978(1) SCR 521: 1977(4) SCC 345: 1977 Lab IC 1923: 1977 SLJ 633: 1978(1) SLR 12. Governor dispensed with Enquiry being satisfied that it is not expedient to hold disciplinary enquiry in interest of security of State. Privilege not allowed in proceeding under Article 226. T.K. Veerangaiah v. State of Karnataka, 1982(1) SLJ 213: 1981(3) SLR 86. (i) Privilege can be claimed for — Noting portion of file of termination of service. Union of India v. Prakash Lal, 1977(1) SLR 565. Notings on the file of termination of service and correspondence between different Ministers do not relate to service record and privilege regarding them can be claimed. Madan Lal v. State of Punjab, 1981(3) SLR 524. (ii) Claim of Privilege, Affidavit for — The affidavit should show that each document in question has been carefully read out and considered and the person making the affidavit is satisfied that its disclosure would lead to public injury. If the Court is satisfied with the affidavit it will refuse disclosure. If the court inspite of the affidavit wishes to inspect the document, it may do so. It is only when injury to public interest by far out weights the consideration that evidence cannot be itted and the claim of privilege is to be upheld. The burden is heavily on the person claiming the privilege to show that a disclosure of contents of the documents would be gravely injurious to public interest. The privilege should be claimed generally by the Minister-in-charge of the department concerned, if not, by the Secretary of the department and the claim should be in the form of an affidavit. State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493: 1961(2) SCR 371: 1961(2) SCJ 691; Amar Chand Butail v. Union of India, AIR 1964 SC 1658; Ram Nath Sahni v. State of Haryana, 1972 SLR 352; State of U.P., v. Raj Narain, AIR 1975 SC 865: 1975(3) SCR 333: 1975(4) SCC 428: 1975(1) SLR 541; State of Orissa v. Jagannath, 1975(2) SLR 413; M.L. Trighatia v. State of Haryana, 1976(1) SLR 20. 104. Documents, Withholding of — Withholding of documents on the ground that it is confidential in nature or not relevant or it would be against public interest or security to produce, it should not be done too freely. State of M.P. v. Chintaman Sadashiva, AIR 1961 SC 1623. 105. Documents, Supply of Copies to Public servant — If the public servant so required for his defence, he has to be furnished with copies of all the relevant documents, i.e. documents sought to be relied on by the Inquiry Officer or required by the public servant for his defence. Daljit Singh Sadhu Singh v. Union of India, AIR 1970 Delhi 52; Trilok Nath”s case, 1967 SLR 759 (SC); State of Gujarat v. Ramesh Chandra Mashruwala, AIR 1977 SC 1619: 1977(2) SCR 710: 1977(2) SCC 12: 1977(2)

R. 14]


351

SCJ 302: 1977 Lab IC 849: 1977 SLJ 198; In another case direction was given to supply the documents. Deepak Puri v. State of Haryana, 2000(10) SCC 373: 2001(1) LLJ 129 and in yet another case after setting aside dismissal matter was again remanded to enquiry officer. Uttar Pradesh Financial Corporation v. V.P. Sharma, 2001 Supp (1) JT 26: 2001(3) SLT 272: 2001(4) SLR 605. One of the principles of natural justice is that a person against whom an action in proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. State of Uttar Pradesh v. Shatrughan Lal, 1998(6) SCC 651: AIR 1998 SC 3038: 1998(5) SLR 43: 1999(1) SLJ 213: 1998(80) FLR 389: 1998(2) LLJ 799: 1998 Lab IC 3489: 1998(4) LLN 639: 1999(94) FJR 36 . It is wrong impression that the enquiry officer/disciplinary authority is bound to supply each and every document that may be asked for by the delinquent Officer/employee. Their duty is only to supply relevant documents and not each and every document asked for by the delinquent officer/employee. It was further held that it was the duty of the delinquent to point out how each and every document was relevant to the charges or to the enquiry being held against him and whether and how their nonsupply has prejudiced his case. Equally, it is the duty of the Tribunal to record a finding whether any relevant documents were not supplied and whether such non-supply has prejudiced the defendant”s case. State of Tamil Nadu v. K.V. Perumal, AIR 1996 SC 2474: 1996(5) SCC 474: 1996 Lab IC 2069: 1996 SCC(L&S) 1280: 1996(3) SLJ 43: 1996(4) SLR 603: 1996(2) LLJ 799: 1996(74) FLR 1999: 1996(2) LLN 883. Denial of opportunity to inspect the documents mentioned in charge sheet is improper. In this case the Enquiry Officer directed that the opportunity of inspection shall be granted at the time of final hearing, it was held that such procedure is improper and violative of Principle of Natural Justice. Committee of Management, Kisan Degree College v. Shambhu Saran Pandey, 1994 Supp (5) SCR 269: 1995(1) SCC 404: 1995(1) SCJ 203: 1995(29) ATC 123: 1995(1) SLR 31: 1995(1) SLJ 156: 1995(2) LLJ 625: 1995(70) FLR 352. Appointment against a post reserved for ST on the basis of a Scheduled Tribe certificate issued by the Tehsildar who subsequently cancelled the certificate holding that the candidate did not belong to Scheduled Tribe. The candidate subsequently charge sheeted and terminated from service for securing the appointment by fraudulent means by submitting a false certificate. Termination of service and disciplinary proceedings challenged on the ground of denial of opportunity of hearing but the record of disciplinary proceedings showing that he was given a copy of the order of cancellation of the ST certificate ed by the Tehsildar and he had duly signed the receipt of the copy of the said order. Held that High Court was not justified in holding that there was denial of opportunity and he was not confronted with the order of

352


[R. 14

cancellation of certificate. State Bank of India v. Luther Kondhpan, 1999(9) SCC 268: 2000(1) LLJ 275: 2000(2) LLN 66. Numerous adjournments were granted to the respondent and on many dates of hearing, he was stated to be on leave on of ill- health. Respondent was given opportunity to inspect the record which he did. Held that it cannot be said that as he was not given photo copies of certain documents, he had been prejudiced in the defence of his case. Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR 1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340. When inspite of non supply of documents, the petitioner could reply to the show cause notice and could defend his case and in the written brief submitted by him, no whisper of suffering any prejudice due to non supply of documents was made, held that no violation of natural justice was made out. Biswanath Ray v. Chairman & M.D. Allahabad Bank, 2001(1) SLR 6 Cal. 106. Whether Copies of Statements Recorded During Preliminary Enquiry should be Supplied to Delinquent Government Servant — A civil servant has a right to two classes of documents in order to defend himself. In the first class are the documents on which the Inquiry Officer relies, that is to say documents which are intended to be used by the prosecution agency to prove the charges against the civil servant. In the second class fall the documents which, even if they are not relied upon by the Inquiry Officer to the charges against the civil servant, are nevertheless required by the civil servant for his defence. Note to sub-rule (11)(ii) confers on the civil servant a right to ask for copies of statement of witnesses mentioned in the list referred to in sub-rule (3) in order to enable him to contradict the witnesses to be examined against him in the departmental enquiry. An important aspect of his defence is to cross examine witnesses against him by using their previous statements to contradict them. To deny the copies of statements recorded during preliminary enquiry would mean the denial of right to defend himself by effective cross-examining by using the previous statements. Even apart from Note referred to supra such a right is included in the minimum content of the rules of natural justice applicable to a disciplinary inquiry. See Jagunat Singh v. Delhi istration, 1970 SLR 400; Union of India v. Ravi Dutt, 1973(1) SLR 1222. Supreme Court in State of Punjab v. Bhagat Ram, AIR 1974 SC 2335: 1975(2) SCR 370: 1975(1) SCC 155: 1974 Lab IC 1442: 1975(1) SLR 2: 1975 SLJ 88, held: “The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross examining the witnesses produced against him. The object of supplying statements is that the Govt. servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Govt. servant. Unless the statement are given to the Govt. servant he will not be able to have an effective and useful crossexamination. It is unjust and unfair to deny the Govt. servant copies of statements of witnesses examined during investigation and produced at the inquiry in of the charges levelled against the Govt. servant. A synopsis does not satisfy the requirements of giving the Govt. servant a reasonable opportunity of showing cause against the action proposed to be taken.

R. 14]


353

Where the copies of statements of witnesses examined during the investigation and ultimately produced at the enquiry in of the charges levelled against him were not supplied to the delinquent servant this lapse or refusal on the part of inquiry officer has obviously resulted in prejudice to the delinquent servant as he had no reasonable opportunity to effectively cross examine the witness. The order of removal was held ab initio void and quashed. Shankar Gotiram Kale v. State of Maharashtra, 1979(2) SLR 496; Narayan Misra v. State of Orissa, 1982(2) SLR 506. A preliminary inquiry had preceded the disciplinary inquiry and during the preliminary inquiry statements of witnesses were recorded but copies of these statements were not furnished to the respondent at the time of the disciplinary inquiry. Even his request to inspect the file of preliminary inquiry was also rejected. The respondent was denied reasonable opportunity to defend himself. Order of dismissal held to be illegal, void and inoperative. State of U.P. v. Mohd. Sharif, AIR 1982 SC 937: 1982(2) SCC 376: 1982(1) SCJ 223: 1982 Lab IC 1234: 1982(2) SLR 265: 1982(2) SLJ 259: 1982(45) FLR 289. Also see notes 47 and 49. 107. Exhibiting of document during enquiry— The documents were taken on file during the course of the enquiry and the delinquent perused everyone of them before the conclusion of the enquiry. Copies were also furnished to him and as requested by him he was given seven days” time for presenting his defence after the receipt of copies of documents though under the rules only three days” time was permitted. Instead of giving numbers to the exhibits as and when the documents were taken on file, the Enquiry Officer would appear to have given serial numbers to the exhibits at the conclusion of the enquiry. It was held that the adoption of such procedure by the Enquiry Officer was not violative of the principles of natural justice. Director General, Indian Council of Medical Research v. Anil Kumar Ghosh, 1998(3) SCR 1034: 1998(7) SCC 97: AIR 1998 SC 2592: 1998(3) CLT 112(SC): 1998(5) SLR 659: 1999(1) SLJ 288: 1998(80) FLR 180: 1999(1) LLJ 1036: 1998 Lab IC 3096: 1998(4) LLN 96

Sub-rule (14) and (15) 108. Date and Place of Hearing be Informed to Delinquent — Delinquent officer has a right to know the time and the place where evidence in of chargesheet is to be recorded. Puran Chandra Das v. Chairman, State Transport Authority, AIR 1970 Ori 1: 1970 Lab IC 47. The petitioner attended the inquiry on 19th March and it was adjourned to 26 th March. On 26th March the petitioner did not appear and the inquiry was fixed for 12th April, 18 witnesses were examined in petitioner”s absence. Petitioner applied for rehearing but the Inquiry Officer refused to reopen the case. It is true that the Inquiry Officer had no obligation to intimate every date of hearing, but it is one thing not to inform and it is entirely a different thing to inform wrongly so as to mislead the delinquent officer. Proceedings from 12 th April onward quashed. I.Ramesh Ao v. State of Nagaland, 1982(1) SLJ 673 Gau.

354


[R. 14

The Inquiry Officer after submission of the reply by the employee not holding any date of inquiry for straightaway submitting inquiry report. The issue involved could not be decided without holding an inquiry. Held that inquiry is initiated being violative of principles of natural justice. H.S. Mishra v. Secretary/General Manager Mau-Aima Sahkari Katai Mills Ltd., 2002(3) SLR 709 All. 109. Language of inquiry— The proceedings of inquiry conducted in English while employee was not conversant with English. No assistance of any advocate given to worker. Inquiry rightly held to be vitiated on of violation of principles of natural justice. Voltas Ltd., Patancheru, Medak District v. Presiding Officer, Labour Court-II, Hyderabad, 1999(5) SLR 699 AP (DB). 110. Enquiry Officer not to Record Evidence on Allegation Extraneous to the Charge — The enquiry officer should not record evidence on allegations extraneous to the charge as it will prejudice him against the delinquent. State of Assam v. Mohan Chandra Kalita, 1972(II) SCWR 375: AIR 1972 SC 2535: 1973(1) SLR 401: 1972(4) SCC(N) 11; Narayan Misra v. State of Orissa, 1982(2) SLR 506. 111. Enquiry Officer, Role of — The enquiry officer is not the prosecutor in the case. It is not his duty to somehow prove the charge. It is not for him to assume that the delinquent officer is guilty and try to bring out ission from the delinquent officer so that the charge against him may be proved. Such an approach would apparently indicate bias on the part of the enquiry officer and so must be avoided. When the enquiry officer forgets his role and instead of putting questions with a view to elucidate answers for proper understanding of the facts before him and begins a searching cross-examination, the object of which is apparently evidence, he ceases to be an enquiry officer any more and his action is liable to be attacked successfully by the other who is prejudiced by the consequently action. It has been noticed time and again by the Courts that when the officer holding the enquiry takes a different role from that of a person who is to adjudicate on the dispute impartially and without bias, he becomes disqualified and it could no longer be said that the result of the enquiry is fair. S. Krihanan Nair v. Divisional Superintendent, Southern Railway, 1973 SLJ 46: 1973(2) SLR 353. One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as “Debet esse Judex in Propria Causa”, which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal or there may be bias as to the subject-matter etc. See Financial Commer. (Taxation) Punjab v. Harbhajan Singh, 1996(9) SCC 281 relied in Amar Nath Chowdhury v. Braithwaite and Company Ltd., AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ 1048: 2002(1) SCJ 268. Cross-examination of defence witnesses by the enquiry officer is in violation of the principles of natural justice and consequently and enquiry proceedings are vitiated. Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454.

R. 14]


355

112. Consideration of confession— It is true that a confession or ission of guilt made by a person accused of an offence before, or while in the custody of, a policy officer is not issible in a court of law according to Sections 25 and 26 of the Evidence Act but it is equally well settled that these rules of evidence do not apply to departmental enquiries wherein the only test is compliance with the principles of natural justice -and, of course, compliance with the rules governing the enquiries, if any. In this context, it is well to that in India, evidence recovered or discovered as a result of an illegal search is held relevant. In a departmental enquiry, it would perhaps be permissible for the authorities to prove that the appellant did make such a confession/ission during the course of interrogation and it would be for the disciplinary authority to decide whether it is a voluntary confession/ission or not. If the disciplinary authority comes to the conclusion that the statement was indeed voluntary and true, he may well be entitled to act upon the said statement. Kuldip Singh v. State of Punjab, AIR 1997 SC 79: 1996(10) SCC 659: 1996(3) SCJ 289: 1996(74) FLR 2378: 1997(1) LLN 62: 1997(90) FJR 21: 1997(1) LLJ 131: 1996(6) SLR 714: 1997(1) UJ 110: 1997 Lab IC 147. 113. Witness, Summoning of for Examination or Discovery and Production of Documents — The inquiring authorities have no statutory power to enforce the attendance of any witness, and to examine him on oath. They cannot enforce the discovery and production of any document nor they can requisition any public record from any court or officer. They also cannot take any action for the disobedience of any such process issued by them. To obviate this difficulty, the Parliament ed the Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, (Act No. XVIII of 1972) empowering the Central Government to authorise the inquiring authority while holding enquiry into allegation of lack of integrity to exercise the power specified in Section 5 of the Act. The Act with short comments has been placed in this book after the chapter on “Allied Service Matters”. When a witnesses is examined in the course of a domestic enquiry, he need not repeat everything that he has said in his earlier statement. It is enough if it is put to him that he had made such statements; and if he its those statements, those statements will have to be treated as his examination-in-chief. Secretary, Central Board of Excise & Customs v. K.S. Mahalingam, 1988(3) SLR 665, 686, 687, para 34 Mad (DB). Where witnesses were sought to be summoned but their evidence was not necessary for the facts of the case and hence was denied, it was held that it did not violate principles of natural justice. Director General, Indian Council of Medical Research v. Anil Kumar Ghosh, 1998(3) SCR 1034: 1998(7) SCC 97: AIR 1998 SC 2592: 1998(3) CLT 112(SC): 1998(5) SLR 659: 1999(1) SLJ 288: 1998(80) FLR 180: 1999(1) LLJ 1036: 1998 Lab IC 3096: 1998(4) LLN 96. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. Held that the Tribunal and the High Court were not justified in thinking that non-examination of these two persons

356


[R. 14

could not be material. It was held further by Supreme Court that there was no proper enquiry held by the authorities and on this ground the order of dismissal was quashed. Hardwari Lal v. State of U.P., AIR 2000 SC 277: 1999(8) SCC 582: 2000(1) LLJ 495:1999(5) SLR 651: 2000 Lab IC 221: 2000(2) LLN 69: 2000(84) FLR 3. 114. Witnesses, Statement of: (i) - Charge-wise Disapproved — The procedure of examining witnesses charges wise was disapproved. Union of India v. Inder Nath, 1978(1) SLR 1. A combined statement recorded of two witnesses is gravely prejudicial to the defence of the delinquent and could gravely vitiate the inquiry. Chairman, Nimhans v. G.N. Tumkur, 1988(6) SLR 25, 28 para 10 Kar (DB). (ii) Be Recorded in Presence of Delinquent Officer — The statement of witnesses in of the charge should be recorded in the presence of the Government servant. Union of India v. T.R. Verma, 1958 SCR 499 (507): AIR 1957 SC 882: 1957-58(13) FJR 237: 1958 SCJ 142: 1958(2) LLJ 259; State of M.P. v. Chintaman Sadashiva Waishanppayam, AIR 1961 SC 1623; Shashi Bhushan Mohanty v. State of Orissa, 1969 SLR 63; Amar Nath v. Commissioner, 1969 Cur LJ 484; Ghirrao Srivastava v. State of U.P., 1975(1) SLR 323; 1975 Lab IC 1033; Narayana Mishra v. State of Orissa, 1982(2) SLR 506. 115. Witnesses, Statement of, in Criminal Trial — Statements of witnesses in criminal trial cannot be itted in evidence and relied upon for establishing the guilt unless the witnesses are produced and tendered for cross-examination. Union of India v. Sardar Bahadur, 1972(2) SCR 218: 1972(4) SCC 618: 1972 Lab IC 627: 1972(1) LLJ 1: 1971(II) SCWR 712: 1972 SLR 355. 116. Witnesses, Statements of, in Preliminary Enquiry, Use of — Statements of witnesses recorded during the preliminary enquiry as the back of the delinquent Govt. Servant could not be read by the Inquiry Officer in formal enquiry. S.D. Bhardawaj v. Union of India, 1982(2) SLJ 515 HP: 1983(1) SLR 32. The order of dismissal was held vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry but the power of employer to start a fresh proceeding cannot be taken away. Therefore, the matter was disposed of with the observation that it will be open to the competent authority to start a fresh disciplinary proceeding and conclude the same in accordance with law. Union of India v. Mohammed Ibrahim, 2001(1) LLJ 1642. The fact that the statements of the witnesses taken at the preliminary stage of the enquiry were used at the time of the formal enquiry does not vitiate the enquiry if those statements were made available to the delinquent officer and he was given opportunity to cross-examine the witnesses in respect of those statements. State of Mysore v. S.S. Makapur, 1963(2) SCR 943: AIR 1963 SC 375: 1964(1) LLJ 24; State of U.P. v. Om Prakash Gupta, 1970 SCWR 139: AIR 1970 SC 679: 1969(3) SCC 775: 1969 SLR 890: 1970 Lab IC 658; M.G. Jayaram Naidu v. University of Mysore, 1975 Lab IC 128.

R. 14]


357

Consideration of statement of persons examined in preliminary enquiry to hold the employee. It was held that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry but the power of employer to start a fresh proceeding cannot be taken away. Therefore, liberty was granted to the competent authority to start a fresh disciplinary proceeding and conclude the same in accordance with law. Union of India v. Mohammed Ibrahim, 2001(1) LLJ 1642: 2001(3) SLT 466: 2001(4) Supreme 565. Non-supply of copies of complaint which formed the basis of preliminary inquiry and the charge sheet despite request of the employee. Held that non-supply of documents caused prejudice resulting in failure to give reasonable opportunity of hearing in the course of departmental inquiry and therefore, is violative of principles of natural justice. Dharmender Kumar Sinha Yadav v. State of Bihar, 1999(5) SLR 311 Pat. 117. Witnesses, before police and statement u/s 161 Cr. P.C.— The statements of witnesses recorded by police u/s 161 Cr.P.C. read over to the witnesses, in the course of enquiry and the same were verified by them. The statement under Section 161 Cr.P.C. may not be issible in the criminal trial, but the said statements can be produced in a disciplinary inquiry. Held that the earlier statement under Section 161 Cr.P.C. became a part of the examination-in-chief of the witness before the Inquiry Officer, and full opportunity was granted to the respondent to cross-examine the said witnesses. Held further that no illegality had been committed by taking on record the statements which had been made under Section 161 Cr.P.C. State Bank of Bikaner and Jaipur v. Srinath Gupta, AIR 1997 SC 243: 1996(6) SCC 486: 1996(89) FJR 783: 1996(74) FLR 2739: 1997(1) LLN 149: 1997(1) LLJ 677: 1997(1) SLJ 109: 1997 Lab IC 151. 118. Witnesses, Mentioned in List, Right to Ask for Copies of Their Statements — The civil servant has a right to ask for copies of statements of witnesses mentioned in the list referred to in sub-section (3) of Rule 14 to deny copies of statements recorded during preliminary enquiry would mean the denial of right to defend himself by effective cross-examination by using the previous statements. Union of India v. Ravi Dutt, 1973(1) SLR 1222 Delhi; State of Punjab v. Bhagat Ram, AIR 1974 SC 2335: 1975(2) SCR 370: 1975(1) SCC 155: 1975(1) SLR 2: 1975 SLJ 88: 1974 Lab IC 1442. 119. Witnesses and Documents Mentioned in the List, Production of — Provisions of Rule 14(15) be complied with. Union of India v. Inder Nath, 1978(1) SLR 1; Fateh Bhadur Singh v. Union of India, 1979(2) SLR 356: 1979 SLJ 607; S.D. Bharadwaj v. Union of India, 1982(2) SLJ 515: 1983(1) SLR 32 HP; H.L. Sethi v. Municipal Corporation of Simla, 1982(2) SLJ 694 HP: 1983 Lab IC 73. 120. Witnesses in of Charge, Failure to Examine Material Witness — Failure to record evidence of witnesses in of the charges, deprived the delinquent officer of an opportunity of cross-examining those witnesses. Sheo Kumar Tiwari v. Janapad Sobha, 1968 SLR 867 MP, Jagdish Prasad v. State of M.B., 1970 SLR 375 (1971) 1: 1970 SCJ 238; Antonio Rodrigues v. I.G.P., 1978(2) SLR 364; Thotappalli Radhakrishna Murthy v. D.M., United India Insurance, 1982 Lab IC 1745.

358


[R. 14

121. Witnesses, Adjournment for Cross Examination — Adjournment for cross examination refused. Principles of natural justice violated. Nripendra Nath v. Chief Secretary, AIR 1961 Cal 1. 122. Witnesses, Cross-examination of - Date be Fixed — No date fixed for the cross examination of witnesses by the delinquent. Order of dismissal cannot stand. Banchchandihi Patnaik v. State of Orissa, AIR 1970 Ori 56; Narayan Misra v. State of Orissa, 1982(2) SLR 506. 123. Witnesses, Opportunity be Given to Delinquent to Cross-examine — Rules of natural justice require that the delinquent must be given opportunity to crossexamine witnesses produced against him. Sukhendra Chandra Das v. U.T. Tripura, AIR 1962 Tripura 15; State of Punjab v. Dewan Chunni Lal, AIR 1963 Punjab 503; Basant Kumar Jain v. Union of India, 1969 DLT 599 (Delhi); Daljit Singh Sadhu Singh v. Union of India, AIR 1970 Delhi 52; State of A.P. v. Mohammed Sarwar, 1971(1) SLR 507; Gajendra Singh v. State of Punjab, 1972 SLR 432; Ghirrao Lal Srivastava v. State of U.P., 1974 SLJ 694: 1975(1) SLR 323: 1975 Lab IC 1033; V.K. Parameshwaram v. Union of India, 1982 Lab IC 383: 1982(1) SLJ 516: 1981(3) SLR 164. Where such opportunity was denied, the findings were set aside and matter was remanded for enquiry from the stage of cross examination. S.C. Girotra v. United Commercial Bank (UCO BANK), 1995 Supp (3) SCC 212: 1995(30) ATC 627: 1995(7) SLR 152: 1996(1) LLJ 10: 1996(1) LLN 26. Opportunity to cross-examine employer”s witnesses who appeared to the employer not afforded to the worker. No opportunity to the workman to lead his defence. Even copy of the enquiry report not made available to the worker. Written confessional statement of the worker not inspiring confidence. Departmental enquiry without ing the worker cannot be termed as departmental enquiry. N.F.L. Employees (Primary) Consumers Co-operative Store Ltd. v. Industrial Tribunal, Punjab, 2001(1) SLR 469 P&H (DB). 124. Witnesses, Enquiry Officer as Witness — (I) Enquiry officer should not rely on his own evidence. A man who is entrusted with the enquiry cannot both be a judge and a witness. He cannot import his personal knowledge. Ashutosh Das v. State of West Bengal, AIR 1956 Cal 278; Satya Prakash Varshney v. Union of India, 1980(3) SLR 64. (ii) Enquiry officer was examined as a witness on behalf of Union of India but the Supreme Court found that in this case there was nothing to justify in holding that the enquiry held by the enquiry officer was vitiated. Kshirode Behari Chakravatry v. Union of India, 1970(1) SCWR 325: 1970 SLR 321. 125. Witnesses, Disciplinary Authority as Witness — Disciplinary authority appeared as a witness against the civil servant. It shocks notions of judicial propriety and fair play. There is violation of natural justice. State of U.P. v. Mohammad Nooh, AIR 1958 SC 86: 1958 SCR 595: 1958 SCJ 242; Nand Kishore Jugal Kishore v. Commissioner of Jabalpur, AIR 1962 MP 15. 126. Witnesses, Evidence of an Accomplice — An accomplice is a competent witness. Union of India v. Triloki Nath, 1981(2) SLR 696. The evidence of an

R. 14]


359

accomplice is legal evidence, but the rule of caution requires that the Tribunal should not act on that evidence unless it is corroborated or the Tribunal has, after cautioning itself as to the danger of acting solely on accomplice”s evidence, decided after due deliberation to accept it. C.J. John v. State of Kerala, 1979(1) SLR 479. An accomplice is a competent witness — Union of India v. Triloki Nath, 1981 (2) SLR 696 In a departmental enquiry, the question, whether or not any delinquent officer is co-accused with other does not arise. That would arise in a prosecution laid for officer under the IPC or Prevention of Corruption Act. The evidence recorded in the departmental enquiry stricto senso is not evidence as per the provisions of the Evidence Act. Therefore, the statement of Palairam also formed part of the record which could be taken into in adjudging the misconduct against the appellant. Vijay Kumar Nigam v. State of Madhya Pradesh, AIR 1997 SC 1358: 1996 Supp (8) SCR 544: 1996(11) SCC 599: 1997(1) SLR 17: 1997(1) CLT 263(SC): 1997(2) LLN 585: 1997(77) FLR 7: 1997(91) FJR 84. 127. Additional Evidence under Rule 14(15) — Under Rule 14(15), the Inquiry Officer is expected to apply his mind to the evidence on record and thereafter record an order that in his opinion it appeared to be necessary to take additional evidence. After such an order the Inquiry Officer should allow the Presenting Officer to produce such additional evidence. In such a case the Government servant is entitled to an adjournment and to produce new evidence. Union of India v. Inder Nath, 1978(1) SLR 1 Cal; S.D. Bhardawaj v. Union of India, 1982(2) SLJ 515 HP; H.L. Sethi v. Municipal Corporation, Simla, 1982(2) SLJ 694 HP: 1983 Lab IC 73. Where the delinquent applies to the Enquiry Officer to summon certain defence witnesses (who happen to be serving under the Government in the same district) the Enquiry Officer should summon them. It is unjustified for him, to leave it to the delinquent applicant to produce the witnesses on his own responsibility. Refusal amounts to denial of opportunity to adduce defence evidence. Shiv Dutta v. State of Punjab, referred to as holding similarly in C. Burrows v. Union of India, 1990(2) SLR 232, 236, 237 para 7 (CAT Jabalpur). Evidence on behalf of Disciplinary Authority was closed. Report was submitted by the Inquiring Officer and case was remitted back, time and again. It was held that additional evidence, cannot be permitted to fill up the gap in the evidence, on behalf of the Disciplinary Authority, Bansi Ram, Commandant v. H.P. SSB Bn Shamshi, Kulu District, 1988(4) SLR 55, 64 para 20 HP, (T.R. Handa, J.) (Discretion vested in the Inquiry Officer was rule 14(5) to examine additional witness, can be exercised only before the case of the disciplinary authority closed). 128. Witnesses, Examination After Delinquent Examined — Where in a case the delinquent was examined prior to examination of prosecution witnesses, enquiry quashed. Holding that this was a negation of the rules. S. Anthonyasani v. Government of India, 1988(1) SLR 515 (CAT) (SN) (Mad). Where the Inquiry Officer having received the statement of defence, itted fresh defence on behalf of the disciplinary authority, the action of the Inquiry Officer

360


[R. 14

could not be said to be procedurally ultra vires as he did have the jurisdiction to entertain fresh evidence under clause (15). His doing so after having received the statement of defence, may have been irregular but such irregularity, does not vitiate the inquiry unless substantial prejudice is established to have been caused to the delinquent Govt. servant. Fateh Bahadur Singh v. Union of India, 1979(2) SLR 357: 1979 SLJ 607 (All).

Sub-rule (16) and (17) 129. Sub-rule (16) can be Complied with when Delinquent Takes Part in Proceedings — Sub-rule (16) requires the Govt. servant concerned to state his defence orally or in writing when the case for the disciplinary authority is closed. Obviously that provision can be complied with when the official against whom disciplinary proceedings are being held takes part in the enquiry proceedings. When the delinquent had chosen not to take part in the enquiry proceedings the question of his being required to state his defence orally or in writing at that stage did not arise. Bhag Singh Bedi v. Union of India, 1974(2) SLR 687; J.P. Srivastava v. Union of India, 1978 SLJ 500: 1978(2) SLR 311 and 450. 130. Defence When not Required — No evidence produced, oral or documentary, to prove the charge. It is not necessary for the Govt. servant to produce evidence. Ram Lal v. Union of India, AIR 1963 Rajasthan 57. 131. Delinquent cannot Claim a Particular Place for Hearing — Delinquent officer cannot claim that enquiry be held at a particular place to enable him to produce witnesses there. Lakshman Shastri v. State of Bihar, AIR 1967 Patna 160. 132. Defence Evidence: Opportunity for — Delinquent officer not given opportunity to lead evidence. Enquiry cannot be said to comply with elementary principles of natural justice. Enquiry vitiated. State of U.P. v. C.S.Sharma, 1967(II) SCWR 648: 1967(3) SCR 843: AIR 1968 SC 158: 1969(1) LLJ 509: 1968 Lab IC 190: 1967 SLR 582; Kesho Rai v. State of Bihar, AIR 1967 Patna 184; Mohinder Singh v. State of Punjab, 1968 Cur LJ 476. Where the delinquent expressly stated before the enquiry officer that he did not desire to examine any witness or tender documentary evidence, and did not content before disciplinary authority that the proceedings before enquiry officer were unfair, it cannot be said that he was not given opportunity of tendering his evidence. Kshirode Behari v. Union of India, 1970(1) SCWR 325: 1970 SLR 321. See also Jagdish Baliram v. M.N. Bhagat, 1990(6) SLR 604 Bombay; S.D. Sharma v. Trade Fair Authority of India, 1985(1) SLR 670: 1985(1) SLJ 160 Delhi (DB). The question whether the delinquent officer was given a reasonable opportunity to lead evidence and to be heard or not is largely a question of fact. It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory provisions of law or a rule of natural justice that it could vitiate the whole departmental trial. R.C.Sharma v. Union of India, AIR 1976 SC 2037: 1976(2) SLR 265: 1976 SLJ 516; K.L.Shinde v. State of Mysore, 1976(3) SCR 913: AIR 1976 SC 1080: 1976(3) SCC 76: 1976(2) SLR 102 & 260: 1976 SLJ 468: 1976 Lab IC 699: 1976(1) LLN 465. 133. Defence Evidence, Right of Delinquent Officer to Produce — It is true that the oral enquiry which the enquiry officer is bound to hold can be regulated by him in his discretion but if the charge-sheeted officer wants to lead oral evidence, the

R. 14]


361

enquiry officer cannot say that having regard to the charge against the officer, he would not hold any oral enquiry. State of Bombay v. Narul Latif Khan, AIR 1966 SCC 269: 1965(3) SCR 135: 1966(2) SCJ 184: 1966(2) LLJ 595. 134. Defence Evidence, Right to Produce, Denied — Right of civil servant to produce his witnesses is denied. The principal of natural justice is violated. The Court has to look to what actual prejudice has been caused to a person by supposed denial to him of a particular right. State of Bombay v. Narul Latif Khan, AIR 1966 SCC 269: 1965(3) SCR 135: 1966(2) SCJ 184: 1966(2) LLJ 595; C.S.Sharma, 1967(II) SCWR 648: 1967(3) SCR 843: AIR 1968 SC 158: 1967 SLR 582; Union of India v. T.R.Varma, 1958 SCR 499: AIR 1957 SC 882; State of M.P. v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623; Mohd. Yusuf Ali v. State of A.P., 1973(1) SLR 650; Dola Gobinda Das v. Union of India, 1981(2) SLR 185. In one case the charge-sheet was submitted upon the delinquent in January, 1983, on behalf of bank, list of documents to be relied upon by the bank was submitted in the months of May and September, 1983, list of witnesses was produced on behalf of the bank in the month of October, 1983, examination of witnesses on behalf of the bank started in that very month, the delinquent went on taking time for cross-examination of some of the witnesses examined on behalf of the bank who were ultimately crossexamined on 20.3.1984, only after examination of witnesses on behalf of the bank was completed, list of witnesses was filed by the defence for which the conducting officer fixed 11.4.1984 and 12.4.1984 as dates for their examination, on 11.4.1984 neither the defence representative appeared nor a single witness was produced on behalf of the defence, rather a prayer was made for time upon which the case was adjourned to next day i.e., 12.4.1984, on the adjourned dated, i.e., 12.4.1984 also neither any defence representative appeared nor any witness was produced by the defence and the conducting officer, therefore, had no option but to submit his report as in spite of full opportunity afforded to the defence no witness was examined. In view of the aforesaid facts, it was held that reasonable opportunity was afforded to the appellant to adduce evidence during the course of enquiry. Deokinandan Sharma v. Union of India, 2001(1) LLJ 1589: 2001(5) SCC 340: 2001(3) SLT 402: AIR 2001 SC 1767: 2001 Lab IC 1704 135. Defence Witnesses: Refusal to Summon and Examine — The Enquiry Officer should not refuse to summon defence witnesses. He is, however, not bound to examine all witnesses nominated by the delinquent. Before summoning witnesses, he has to see that the witnesses are material. If he refuses to summon and examine the witnesses, the question will arise whether he was justified to refuse to summon and examine them. The guiding principle is whether the action of the enquiry officer resulted in denial of a reasonable opportunity to the delinquent to defend himself and showing cause against the charge and thus prejudice was caused to him whereby principles of natural justice were violated. Janki Nath Sarangi v. State of Orissa, 1969(II) SCWR 278; State of Punjab v. Dewan Chuni Lal, 1970(1) SCWR 413: 1970 SLR 375: 1970(1) SCC 479: AIR 1970 SC 2086; Harmander Singh v. G.M., Northern Rly., 1973 SLJ 569: 1973(1) SLR 846; Gajender Singh v. State of Punjab, 1972 SLR 432; Abdul Aziz Khan v. Union of India, 1973 SLJ 597: 1974(1) SLR 67; Inspecting Assistant Commissioner v. Somendra Kumar, 1976(1) SLR 143: 1975 Lab IC 1647; R.C. Sharma v. Union of India, AIR 1976 SC 2037: 1976 Supp SCR 580: 1976(3) SCC

362


[R. 14

574: 1976 Lab IC 1333: 1976(2) SLR 265: 1976 SLJ 516: ; Girwar v. Union of India, 1982(2) SLJ 56. 136. Defence Witnesses not Examined by Enquiry Officer as they were Unwilling to Depose for Delinquent Officer — The witnesses whom the delinquent officer wanted to examine were not examined at the enquiry as it was stated that they expressed their unwillingness to depose in favour of the delinquent officer. No Enquiry Officer can compel the presence of unwilling witnesses or to make them speak in favour of the delinquent officer. J.Selvraj v. Union of India, 1981(3) SLR 20: 1981(2) SLJ 413: 1982 Lab IC 450; S.D.Sharma v. Trade Fair Authority of India, 1985(1) SLR 670: 1985(1) SLJ 160 Delhi (DB). 137. Defence Witnesses, Cross-examination of, by Enquiry Officer — Cross-examination of defence witnesses by the enquiry officer was in violation of the principles of natural justice and consequently the enquiry proceedings were vitiated. Abdul Wajeed v. State of Karnataka, 1981(1) SLR 454. 138. Defence, When no Evidence to Charge — No evidence was produced in of charge. Defence of delinquent was taken. Finding could not be given that the charge had been established. Municipal Committee, Rohtak v. Johri Mal Mitter, 1970 Lab IC 1488: 1970 SLR 29. 139. Examination of Delinquent, Several Times — Where the delinquent officer was examined, at the commencement of the enquiry and several times thereafter, it was held that the enquiry was not fair. Ramshekal Yadav v. Chief Security Officer, AIR 1967 MP 91. 140. Examination of Delinquent and his Witnesses Before Departmental Witnesses, Irregular — Examination of delinquent and his witnesses before departmental witnesses is not only irregular but contrary to procedure of enquiry and principles of natural justice. Union of India v. Reghubir Saran, 1982 Lab IC 1894. 141. Material on Record: Opportunity to Explain to be Given to Delinquent — Rules of natural justice require that no material should be relied on against a Govt. servant without being given an opportunity of explaining them. Union of India v. T.R. Verma, AIR 1957 SC 882; State of Mysore v. K.Manche Gowda, AIR 1964 SC 506: 1964(4) SCR 540; Ghirrao Lal Srivastava v. State of U.P., 1974 SLJ 694: 1975(1) SLR 323: 1975 Lab IC 1033; Mangal Singh v. Commissioner, 1975(1) SLR 500; Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323. See also Raj Singh v. State of Punjab, 1995(8) SLR 557 P&H; Dr Ravi Dutt Sharma v. State of Rajasthan, 1995(8) SLR 774 Raj; Himachal Dalpatram Nimbark v. Deputy Distt. Development Officer, Amreli, 1997(2) SLR 538 Guj. Non-supply of copies of relevant documents vitiates the inquiry. N.K. Varadarajan v. Senior Deputy Director General, 1991(1) SLR CAT (Bangalore). 142. Material Collected and Relied Upon by Enquiry Officer Behind the Back of Delinquent — If it is established that the material behind the back of the delinquent officer has been collected during the enquiry and such material has been relied upon by the enquiry officer, without its having been disclosed to the delinquent

R. 14]


363

officer, it can be stated that the inquiry proceedings are vitiated. State of M.P. v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623; Rai Bahadur Singh v. S.D.O., 1975 Lab IC 682. 143. Extraneous Matter, Collection and Placing of it on Record — It is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in enquiry proceedings. State of Mysore v. S.S. Makapur, 1963(2) SCR 943: AIR 1963 SC 375; State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255: 1971(1) SCR 87: 1970 SCC 709: 1970 Lab IC 1056: 1970 SLR 444; Amar Nath v. The Commissioner, 1969 Cur LJ 484; Raj Paul v. , Municipal Committee, 1970 Cur LJ 406: 1970 SLR 494; Rai Bahadur Singh v. S.D.O., 1975 Lab IC 682. 144. Enquiry Officer Relied Upon Material not Placed on Record During Enquiry — Where the Enquiry Officer relied upon material which was not placed on record during enquiry, it was held that the delinquent officer had not been given reasonable opportunity of defending himself in the case and the order of dismissal was set aside. Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323 (FB). 145. Statement not Recorded during Enquiry not to be Relied Upon — Enquiry officer should not rely on the statement of a person whose statement had not been recorded during the enquiry. Ram Shakal Yadav v. Chief Security Officer, AIR 1967 MP 91.

Sub-rule (18): 146. Failure to Generally Question Delinquent Officer Under Sub-rule (18) — Failure to comply with the requirement of sub-rule (18) does not vitiate the enquiry unless the delinquent officer is able to establish prejudice. Rule 8(19) of All India Service (Discipline and Appeal) Rules, 1969 and sub-rule (18) of Rule 14 of CCS (CCA) Rules are almost similar. The decision therefore applies to sub-rule (18). Sunil Kumar Banerjee v. State of West Bengal, 1980(2) SLR 147 (SC): AIR 1980 SC 1170: 1980(3) SCR 179: 1980(3) SCC 304: 1980 Lab IC 654: 1980(2) SCJ 327: 1980(40) FLR 434. Delinquent raised a question about procedural error in the inquiry by Enquiry Officer, but did not take a particular stand. It was held that there was no illegality. Secretary, Central Board of Excise and Customs, New Delhi v. K.S. Mahalingam, 1988(3) SLR 667 Mad (DB). Question should refer to the evidence. Findings should not be based on the answers. Satyapal Arora v. Director of Postal Services, 1990(2) SLJ 700 (CAT, Jabalpur). Extensive examination of the delinquent by the Enquiry Officer is deprecated. Ram Shakial Yadav v. Chief Security Officer, AIR 1967 MP 91. The questions should be inquisitorial. S.Krishnann Nair v. Divisional Superintendent, Southern Railway, 1973 Lab IC 591 (Ker): 1973 SLJ 46: 1973(2) SLR 353; Satyapal Arora v. Director of Postal Services, 1990(2) SLJ 100 (CAT, Jabalpur).

364


[R. 14

Enquiry Officer”s failure to question the petitioner, as per the requirements of Rule 14(18), CCS etc. does not affect the inquiry if there is no gross injustice and prejudice to the petitioner. V. Gopalan v. Union of India, 1990(7) SLR 221, 224, para 7 (CAT, Ernakulam).

Sub-rule (19) 147. Supply of Copy of Written Brief to Government Servant, Necessary — Rule 14(19) has left with the Enquiry Officer alternative course to be followed after the closing of evidence for hearing the parties, that is, he may either hear the oral arguments of Presiding Officer and the Government servant or alternatively permit them to file written briefs of their respective cases if they would so desire. There is no provision in the rule for supplying a copy of the written brief that may be filed by the Presenting Officer to the Government servant. The question is whether non-supply of copy of the written brief to the Government servant contravenes the rules of natural justice. The question was decided by the Calcutta High Court in Collector of Customs v. Mohd. Habibul Haque, 1973(1) SLR 321, and it was held that the requirements of rules and principles of natural justice demand that the respondent should be served with a copy of the written brief filed by the Presenting Officer even though service of such a copy is not expressly provided in the rule. Failure to supply such a copy results in denial of reasonable opportunity to the respondent to defend himself and thus renders the entire disciplinary proceedings, invalid.

Sub-rule (20) 148. Ex parte Enquiry on Refusal of Service — (i) All that is required in departmental enquiry is that a reasonable opportunity should be given and trying to serve the Petitioner by ed A.D. Post is more than reasonable. If the petitioner chose to refuse service he must pay for the consequences. Ex parte enquiry valid. Jadish Sekhri v. Union of India, 1970 SLR 571 Delhi; Union of India v. H.C. Sarin, 1967 DLT 567. See also Sri Ram Verma v. District Assistant Registrar, 1986(3) SLR 23 (DB). Termination of employee on the basis of enquiry in which the employee himself chose not to participate was held valid and not assailable. Ranjan Kumar Mitra v. Andrew Yule & Co. Ltd., 1997(10) SCC 386. The post returned with endorsement “refused”. Held that it should be proved by leading evidence as mere avoidance of service not sufficient to proceed ex-parte enquiry. It should be proved that the avoidance was made deliberately and knowingly. Ramesh Chander Tyagi v. Union of India, 1994(2) SCC 416: 1994(1) SLR 838: 1994(68) FLR 688: 1994(2) LLJ 192: 1994(27) ATC 112: 1994(2) LLN 748: 1996(1) SLR 703. 149. Delinquent Officer did not Participate in Proceedings — Where the delinquent officer at no time made any effort to participate in the proceedings, ex parte proceedings are not vitiated. Sualal Yadav v. State of Rajasthan, 1977(1) SLR 681: 1977 SLJ 175. Where the delinquent refused to participate in the disciplinary proceedings without any valid reason, it was held that such employee cannot be permitted to complain later on that he had been denied the reasonable opportunity of defending

R. 14]


365

himself and no violation of principles of natural justice can be alleged. Bank of India v. Apurba Kumar Saha, 1994(2) SCC 615: 1994(1) SLR 260: 1994(3) SLJ 32: 1995(1) BC 13: 1994(2) LLN 56: 1995(2) LLJ 18. Opportunity of participating in disciplinary inquiry not availed on the pretext that criminal proceedings were going on against the delinquent. Held that the inquiry proceeded ex-parte by the Inquiry Officer did not suffer from any procedural illegality. State of Tamil Nadu v. M. Natarajan, AIR 1997 SC 3120: 1997(6) SCC 415: 1997(77) FLR 23: 1997(4) LLN 50: 1998(1) LLJ 59: 1998(1) SLJ 7: 1997 Lab IC 2929. 150. Delinquent Failing to Appear for Non-payment of Subsistence Allowance — Appellant was suspended and was called upon to appear before Enquiry Officer. He made representation that unless, he was paid subsistence allowance he would not be able to face the proceedings. Enquiry proceeded and he was dismissed. Held, reasonable opportunity of defending himself in the enquiry was not provided. Ghansyam Das Srivastava v. State of M.P., 1973(1) SCWR 391: AIR 1973 SC 1183: 1973(1) SCC 656: 1973(23) FLR 466: 1973(1) SLR 636: 1973 SLJ 356: See also Bansidhar Panigrahi v. State of Orissa, 1975(2) SLR 725. When the employee is placed under suspension, he is de-mobilised and the salary is also paid to him at a reduced rate under the nick name of “Subsistence Allowance”, so that the employee may sustain himself. Its denial is not proper. M. Paul Anthony (Captain) v. Bharat Gold Mines Ltd., AIR 1999 SC 1416: 1999(3) SCC 679: 1999(2) JT 456: 1999(2) KLT 17(2): 1999(2) SLR 338 (SC): 1999 Lab IC 1565: 1999(2) LLN 640: 1999(82) FLR 627: 1999(95) FJR 1: 1999(2) SCJ 358: 1999(3) SLJ 152. 151. Delinquent Failing to Appear for Non-service with Any Notice — No notice was available on the enquiry proceedings file or in the office of the respondents proving that the petitioner had been duly served. Order regarding ex parte proceedings against him was bad. H.L. Sethi v. Municipal Corporation, Simla, 1982(2) SLJ 694: 1983 Lab IC 73. 152. Sub-rule (11) be Complied with Even in ex parte Enquiry — Sub-rule (11) cannot be given a go by even in an ex parte under sub-rule (20). Anil Kumar Das v. Supdt. of Post Offices, AIR 1969 Assam 99. See also Sri Ram Verma v. District Assistant Registrar, 1986(3) SLR 23 (DB).

Sub-rule (21)(a): 153. Disciplinary Proceedings Initiated by Authority Competent Only to Inflict Minor Penalties — From sub-rule (21)(a) it is clear that an authority competent to impose any of the minor penalties can himself inquire into the articles of charge or cause it to be inquired into any other person appointed by him and in that case the order awarding any of the major penalties, made by the authority competent to impose such major penalty will not be deemed bad in law merely on the ground that the disciplinary proceedings had been initiated by an authority competent only to inflict any of the minor penalties. Director, Postal Service v. Oudh Behari Singh, 1980 SLJ 142. See also State of Punjab v. Choudhary Manphul Singh, 1986(1) SLR 484 P&H.

366


[R. 14

Sub-rule (22): 154. Enquiry de nova on Change of Enquiry Officer — (I) A civil servant cannot insist for de nova enquiry when there has been change of personnel of enquiry officer because the findings of enquiry officer do not have a conclusive or binding effect on the punishing authority. S. Harjit Singh v. I.G. Police, AIR 1963 Pun 90; Deputy Inspector-General of Police v. P. Amualanathan, AIR 1966 Mad 203 (FB). (ii) The successor enquiry officer can submit the enquiry report on the basis of materials collected by his predecessors. Bauribandhu Misra v. I.G. Police, AIR 1970 Ori 213. See also Amal Kumar Roy v. Union of India, 1988(1) SLR 330 (CAT Cal); M. Kolanadni Gounder v. Divisional Engineer, T.N.E.B., Thuraiyur, 1997(1) SLR 467 Mad. 155. Enquiry Committee: Change in Personnel — A change in personnel”s of the Inquiry Committee after the proceedings are begun and some evidence recorded cannot make any difference to the case of the civil servant. Report of Enquiry Committee not vitiated. No violation of any principles of natural justice. General Manager, E.Rly v. Jawala Prasad Singh, AIR 1970 SC 1095: 1970(3) SCR 271: 1970(1) SCC 103: 1970 SLR 25: 1970 Lab IC 866: 1970(2) LLJ 279: 1970(20) FLR 84: 1971(1) SCJ 439.

Sub-rule (23): 156. Proof Required in Departmental Proceedings — (I) The rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, is not applicable to departmental proceedings. State of A.P. v. S.Sree Rama Rao, AIR 1963 SC 1723: 1964(3) SCR 25: 1964(2) SCJ 300: 1966(13) FLR 104: 1964(1) LLJ 1; Sanat Kr. Banerjee v. Collector, 1970 Lab IC 1641 (Cal); Sat Prakash Manchanda v. Union of India, 1975 SLJ 101; K.L. Shinde v. State of Mysore, AIR 1976 SC 1080: 1976(3) SCR 913: 1976(3) SCC 76: 1976 SLJ 468: 1976(2) SLR 102 & 260: 1976 Lab IC 699: 1976(1) LLJ 465. (ii) The standard of proof required is that of preponderance of probability and is not proof beyond reasonable doubt. Union of India v. Sardar Bahadur, 1971(II) SCWR 712: 1972 SLR 355; Standard of proof in a criminal case and departmental enquiry is different. Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3) SCC 628: 1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1995(2) LLJ 633: 1996(2) LLN 451. The inquiry proceedings should not be examined by the court as if it was hearing an appeal in criminal case. Union of India v. A. Nagamalleshwar Rao, AIR 1998 SC 111: 1998(1) SCC 700: 1998(78) FLR 68: 1998(1) SLR 18: 1998 Lab IC 389: 1998(1) LLN 361. See also Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR 1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340. (iii) Though the proof beyond reasonable doubt should not be insisted upon still the proof should be capable of scrutiny and should stand test of reasonableness consistent with human conduct and probabilities. The findings should be ed by legal evidence. K. Sundora Rajan v. D.I.G. Police, Tiruchirapalli, 1973 SLJ 100: 1972 SLR 723.

R. 14]


367

(iv) It may be that in disciplinary proceedings, the technicalities of criminal law cannot be invoked, and the strict mode of proof prescribed by the Evidence Act may not be applied with equal rigour, but the charge framed against the public servant must be held to be proved before any punishment can be imposed on him. State of Madras v. A.R. Srinivasan, 1966(II) SCWR 524: AIR 1966 SC 1827: 1967(15) FLR 104: 1967(1) SCJ 855. 157. Findings of Enquiry Officer should be Clear and Definite — (I) The mind of the Enquiry Officer and the Disciplinary Authority should be applied with scrupulous regard to the material on the record and that it should be followed by a clear and definite finding. A weak and inconclusive finding cannot serve in law as the basis for taking action against the delinquent official. Gian Singh v. State of H.P., 1974(2) SLR 226: 1975 Lab IC 73. (ii) Enquiry Officer recorded a hesitating finding ing the defence plea. Held, a departmental action is not a criminal charge and therefore courts have taken the view that doctrine of benefit of doubt has no application. On the evidence, as a fact conclusion on the point should have been reached. Paramananda Mishra v. Comptroller and Auditor General of India, 1974(2) SLR 487: 1975 Lab IC 838. See also Kalidas Biswas v. Union of India, 1990(6) SLR 413 (CAT Cal); Kapileshwar Paswan v. G.M., North Eastern Railway, 1989(5) SLR 799 (CAT Patna). 158. Findings of Enquiry Officer, Recommendations as to Punishment — The Enquiry Officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer unless the statutory rules or the specific order under which an officer is appointed to hold an enquiry so requires. If the Enquiry officer has made any recommendations that a particular penalty or punishment should be imposed, the Delinquent Officer should be informed about the recommendations. State of Gujarat v. R.G. Teredesai, 1970(1) SCR 251: AIR 1969 SC 1294: 1969(2) SCC 128: 1969(2) SCJ 740: 1969 SLR 519: 1969 Lab IC 1547; Rai Bahadur Singh v. S.D.O., 1975 Lab IC 682. 159. Findings of Enquiry Officer should be Based on Some Evidence — The minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusion on the basis of some evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof in such inquiries. Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3) SCR 708: 1978(3) SCC 366: 1978 SLR 46: 1978 SLJ 591: 1978 Lab IC 1106: 1978(2) LLJ 84: 1978 SLJ 591: 1978(2) LLN 278. Where there was no evidence to the charges the penalty imposed was quashed. Prakash Chandra Suar v. State of Orissa, 1981(3) SLR 323. 160. Supply of copy of Enquiry report— Copy of report of Enquiry Officer must be supplied by disciplinary authority before inflicting penalty. Failure to supply the same is violation of rules of natural justice. Penalty of premature retirement inflicted as a result of disciplinary proceedings is illegal. J.C.Mehta v. Sptdg. Engr.,

368


[R. 14

P.G.I., Chandigarh v. Post Graduate Institute of Medical Education and Research, Chandigarh, 1988(4) SLR 768 P&H. Non-supply of the inquiry report to the delinquent amounts to violation of natural justice. Sudhanshu Sekhar Routh v. Union of India, 1989(1) SLR 502 Cal (Paritosh Kumar Mukherji, J.). If the procedure for major penalty is initiated under Rule 15 CCS Rules and whole procedure (inquiry and report) is undergone then all the requirements of Rule 15 must be complied with even if ultimately minor penalty is imposed. Hence copy of the inquiry report must be supplied to the delinquent. Md. Athar Akbar v. State of Orissa, 1990(2) SLR 244 (Orissa At, Bhubaneshwar). For dropping of departmental enquiry see Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Calcutta). Supreme Court in State of Gujarat v. R. G. Teredesai, (1970) 1 SCR 251 : AIR 1969 SC 1294 has indicated that the Inquiry Officer was under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the government servant against whom departmental inquiry is held and his function merely is to conduct the inquiry in accordance with law and to submit the record along with the findings or conclusions on the delinquent servant. But if the Inquiry Officer has also made recommendations in the matter of punishment, that is likely to affect the mind of the punishing authority with regard to penalty or punishment to be imposed on such officer which must be disclosed to the delinquent officer. Since such recommendation forms part of the record and constitutes appropriate material for consideration of the Government, it would be essential that that material should not be withheld from him so that he could while showing cause against the proposed punishment make a proper representation. The entire object of supplying a copy of the report of the Inquiry Officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. (at p. 254 of SCR and at p. 1296 of AIR) of the Reports Grover, J. speaking for this Court stated: “The requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the Inquiry Officer including his views in the matter of punishment are disclosed to the delinquent servant.” In Uttar Pradesh Government v. Sabir Hussain, (1975) Suppl. SCR 354: AIR 1975 SC 2045, Supreme Court held that the High Court was right in holding that the delinquent was not given a reasonable opportunity to show cause against the action proposed to be taken against him and that the non-supply of the copies of the material documents had caused serious prejudice to him in making a proper representation. Thereafter a question arose that as to whether the Forty-Second Amendment has brought about any change in the position in the matter of supply of a copy of the report and the effect of non-supply thereof on the punishment imposed. Replying in negative the Supreme Court observed: “With the Forty-Second, Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions

R. 14]


369

made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof. Wade has pointed out: “The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair istrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly.” Deletion of the second opportunity from the scheme of Art. 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. It was therefore held that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.” Union of India v. Ramzan Khan (Mohd), 1990 Supp (3) SCR 248: AIR 1991 SC 471: 1991(1) SCC 588: 1990(4) JT 456: 1991(78) FJR 207: 1991(1) ATR 120: 1991(16) ATC 505: 1991(1) LLN 380: 1990(61) FLR 736: 1991(1) SLR 159: 1991 Lab IC 308: 1991(1) LLJ 29: 1991(1) SLJ 196. Another argument advanced on the basis of Art. 14 of the Constitution, namely, that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be, was held to have no foundation inasmuch as where the disciplinary authority is the Inquiry Officer

370


[R. 14

there is no report. He becomes the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Even otherwise, the inquiries which are directly handled by the disciplinary authority and those which are allowed to be handled by the Inquiry Officer can easily be classified into two separate groups - one, where there is no inquiry report on of the fact that the disciplinary authority is the Inquiry Officer and inquiries where there is a report on of the fact that an officer other than the disciplinary authority has been constituted as the Inquiry Officer. That itself would be a reasonable classification keeping away the application of Art. 14 of the Constitution. Union of India v. Ramzan Khan (Mohd) (supra). Thereafter this question was again considered by a Constitution Bench of the Supreme Court consisting of M. N. Venkatachaliah, C.J.I., P.B. Sawant, K. Ramaswamy, S. Mohan and B. P. Jeevan Reddy, JJ. in Managing Director, ECIL, Hyderabad, v. B. Karunakar, 1993 Supp(2) SCR 576: 1993(4) SCC 727: 1994(6) JT 1: AIR 1994 SC 1074: 1993(3) SLJ 193: 1993(25) ATC 704: 1994(84) FJR 210: 1993(5) SLR 532: 1993(67) FLR 1230: 1994(1) LLJ 162: 1994 Lab IC 762: 1994(2) LLN 9 The majority judgement was delivered by Sawant J. for M. N. Venkatachaliah, C. J. I., for himself, S. Mohan and B. P. Jeevan Reddy, JJ. His lordship formulated the following questions for consideration by the Constitution Bench: “The basic question of law which arises in these matters is whether the report of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions: (i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it? (ii) Whether the report of the Inquiry Officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank? (iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise? (iv) Whether the law laid down in Mohd. Ramzan Khan”s case (AIR 1991 SC 471) (supra) will apply to all establishmentsGovernment and non-Government, public and private sector undertakings? (v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?

R. 14]


371

(vi) From what date the law requiring furnishing of the report should come into operation? (vii)Since the decision in Ramzan Khan”s case (AIR 1991 SC 471) (supra) has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment ed after 20th November, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to 20th November, 1990? After a detailed consideration various earlier decision on the subject and evolution of law on the subject, in respect of requirement of principles of natural justice it was held “Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the enquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that “where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”, it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee”s reply to the Inquiry Officer”s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry Officer”s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. … … Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer”s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee”s right to defend himself against the charges levelled against him. A denial of the Inquiry Officer”s report before the disciplinary authority takes its

372


[R. 14

decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” In regard to the questions formulated above, it answered as under: (i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. (ii) The Article 311, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer”s report notwithstanding the nature of the punishment. (iii) Since it is the right of the employee to, have the report to defend himself effectively, and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the, report or not, the report has to be furnished to him. (iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan”s case (AIR 1991 SC 471) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. (v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some

R. 14]


373

cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a “unnatural expansion of natural justice” which in itself is antithetical to justice. …. Hence, in all cases where the Inquiry Officer”s report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court, Tribunal comes to the conclusion that the nonsupply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/ Tribunals find that the furnishing of the report would have made a difference to the result in the case that should set aside the order of punishment. Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

374


[R. 14

(vi) & (vii) It is for the first time in Mohd. Ramzan Khan”s case (supra) that this court laid down the law. That decision made the law, laid down there prospective in operation, i.e., applicable to the orders of punishment ed after 20th November, 1990. The law laid down was not applicable to the orders of punishment ed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the Inquiry Officer”s report to the employee. The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee. The above answers to seven questions extracted above cover the all aspects of supply and non supply of enquiry report. Accordingly an order ed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by nonfurnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing copy of enquiry report under the statutory provisions and/or services rules. State of Uttar Pradesh v. Harendra Arora, 2001(3) SCR 375: AIR 2001 SC 2319: 2001(6) SCC 392: 2001(4) SLR 558: 2001 Lab IC 1805: 2002(3) LLJ 1124. In cases of non-supply of Enquiry report to delinquent after this decision, it was accordingly held that the judgment of Supreme Court in Ramzan Khan”s case being prospective in operation, the delinquent not entitled to its benefit. Inspecting Assistant Commissioner, Bombay v. Sharat Narayan Parab, 1998(1) SCC 484: 1998(78) FLR 79: 1998(1) SLR 8: 1998(2) LLJ 653 See also Union of India v. B.K. Srivastava, 1998(6) SCC 340: AIR 1998 SC 300: 1997(77) FLR 786: 1998(1) LLJ 431: 1998(1) LLN 340; State of Karnataka v. V. B. Hiregowdar, AIR 1997 SC 9: 1996(10) SCC 505: 1996(4) SLR 704: 1996(6) AD(SC) 45: 1996 Lab IC 2748: 1997(1) SLJ 47: 1997(2) LLJ 921: 1998(78) FLR 527; State of Uttar Pradesh v. Abhai Kishore Masta, 1995(1) SCC 336: 1994(7) JT 748: 1995(1) SCJ 199: 1995(1) SLR 16: 1995(29) ATC 116: 1995(2) SLJ 1: 1995 Lab IC 1401: 1995(70) FLR 789; Divisional Commercial Superintendent v. K. Nagarajan, 1994(27) ATC 445: 1995 Supp (4) SCC 420.


R. 15]

375

ACTION ON THE INQUIRY REPORT R. 15

15.

Action on the Inquiry report:— (1) The disciplinary authority, if it is not itself the inquiry authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiry authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as maybe. 1

[(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiry authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant. (2A) The disciplinary authority shall consider the representation, if any, submitted by the Government servant before proceeding further in the matter specified in sub-rules (3) & (4). (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall notwithstanding anything contained in Rule 16, make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced 1

Sub-rules(1-A), (1-B) and (2) substituted by Rules (2) and (2-A) vide Notification No.11012/20/1998 Estt. (A), dated 21.08.2000 and published in the Gazette of India by GSR No.337 dated 02.09.2000.

376


[R. 15

during the inquiry, is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.

COMMENTARY SYNOPSIS Sub-rule (1) 1.

Enquiry officer and disciplinary authority: Generally .................................................... 377

2.

Power to remit case for further enquiry. ......................................................................... 377

3.

De nova enquiry ............................................................................................................. 378

Sub-rules (2), (3) and (4) 4.

Disagreement with Enquiry Officer ............................................................................... 379

5.

Disciplinary authority to give its reasons of disagreement ............................................. 379

6.

Natural Justice ................................................................................................................ 380

7.

Disagreement with Enquiry Officer or Committee, when High Court to interfere ......... 381

8.

Bias of punishing authority ............................................................................................ 382

9.

Enquiry Officer acting as Disciplinary Authority........................................................... 382

10. Disciplinary Authority is not bound by findings of Enquiry Officer .............................. 383 11. Disciplinary Authority to apply mind............................................................................. 384 12. Dismissal in default ........................................................................................................ 385 13. Disciplinary Authority Whether to give reasons for accepting the findings of enquiry officer ............................................................................................................................. 385 14. Quasi-judicial authorities should indicate reasons.......................................................... 386 15. Disciplinary Authority: Power to interfere with other enquiries .................................... 386 16. Order of disciplinary authority to show what charges had been established .................. 387 17. Order should be a speaking order ................................................................................... 387 18. Extraneous matters not be considered ............................................................................ 388 19. Suspicion, no substitute for proof................................................................................... 389 20. High Court not to review materials in a writ, if enquiry properly held .......................... 389 21. High Court whether to appraise evidence in writ ........................................................... 390

R. 15]


377

22. Challenge to Departmental proceedings by Public Interest Litigation ........................... 391 23. Minor irregularity in conducting enquiry does not vitiate a correct finding ................... 392 24. Public Service Commission - Advice of......................................................................... 392 25. Public Service Commission, consultation with .............................................................. 392 26. Commission”s recommendations or advice, non-supply of, to delinquent officer for his comments ....................................................................................................................... 392 27. Disciplinary authority obtained the views of Vigilance Commissioner ......................... 393 28. Charge of major penalty, minor penalty can be imposed ............................................... 393 29. Punishment after retirement ........................................................................................... 394 30. Withholding of pension .................................................................................................. 395 31. Punishment on report of Enquiry Officer not appointed by disciplinary authority......... 395 32. Punishment with retrospective effect ............................................................................. 395 33. Punishment, discrimination in imposing of .................................................................... 396 34. Punishment, consideration of by Court .......................................................................... 397 35. Order of punishment, whether should be in standardised form ...................................... 397 36. Removal or dismissal by an authority subordinate to that by which civil servant was appointed is void and inoperative ................................................................................... 397 37. Second opportunity rule not applicable even to proceedings initiated prior to 1977 ...... 399

ACTION ON THE INQUIRY REPORT Sub-rule (1) 1. Enquiry officer and disciplinary authority: Generally — When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. In any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. Punjab National Bank v. Kunj Behari Misra, 1998(7) SCC 84: AIR 1998 SC 2713: 1998(5) JT 548: 1998(5) SLR 715: 1999(1) SLJ 271: 1998(80) FLR 341: 1998(2) KLT 66(SN): 1998(2) LLJ 809: 1998 Lab IC 3012: 1998(93) FJR 588. 2. Power to Remit Case for Further Enquiry — In case of disagreement, the Disciplinary Authority should record reasons for such disagreement and then to record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the Enquiry Officer for further enquiry and report. Bank of India v. Degala Suryanarayana, AIR 1999 SC 2407: 1999(5) SCC 762: 1999(4) JT 489:

378


[R. 15

1999(4) SLR 292: 1999(2) LLJ 682: 1999 Lab IC 2819: 1999(3) LLN 532: 1999(82) FLR 1004: 1999(95) FJR 477: 1999(3) SCJ 168. When the inquiring authority has submitted his report, it is open to the disciplinary authority to refuse or accept it and to send back the matter to the Enquiry Officer making further inquiry. Keshab Chandra Sarama v. State of Assam, AIR 1962 Assam 17. See also Union of India v. Mohd. Ramzan Khan, 1990 Supp(3) SCR 248: 1991(1) SCC 588: AIR 1991 SC 471: 1990(4) JT 456: 1991 (78) FJR 207: 1991(1) ATR 120: 1991(16) ATC 505: 1990(61) FLR 736: 1991(1) SLR 159: 1991(1) SLJ 106: 1991 Lab IC 308. This power should be invoked only if necessary for ends of justice and must be exercised with care. Such an order would be illegal if it is ed not on any error on the part of the Enquiry Officer or defect in the procedure adopted by it but merely to enable the presenting officer to supply the deficiencies to prove the charges and to do what he had failed to do. Disciplinary Authority can order only a limited further inquiry. M.S. Halwe v. Union of India, 1987(3) SLJ 687. The Railway Servants (Discipline and Appeal) Rules, 1968, Rule 10, [which corresponds to Rule 15, CCS (CCA) Rules] does not empower the disciplinary authority, who disagrees with the finding of the inquiring authority to remit the case for fresh inquiry. H.D. Chothani v. Additional Divisional Railway Manager, Central Railway, 1990(3) SLJ 288 (CAT, New Bombay). Rule 10(2), Railway Servants (Discipline and Appeal) Rules, 1968, reads as under:— “10.(2) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded in writing, remit the case to the enquiry authority for further inquiry and report and the enquiry authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 9 as far as may be.”. The rule does not envisage a de novo inquiry by appointing another Inquiry Officer. Ordering another Enquiring Officer after the inquiry authority has submitted his report is also illegal where the second inquiry is itself illegal for the reason mentioned above and the order ed as a result of such inquiry also cannot stand and has to be quashed. L.David v. Union of India, 1990(14) ATC 590 Mad. 3. De nova Enquiry — There is no provision in the rules to order a de nova inquiry after wiping out the enquiry already conducted. The Disciplinary Authority however can remit the case to the inquiry authority for further inquiry. K.R. Deb v. Collector of Central Excise, AIR 1971 SC 1447: 1971 Supp SCR 375: 1971(2) SCC 102: 1971(1) SLR 29: 1971 Lab IC 945: 1971(1) LLJ 427; Kesevan Nambodiri v. State of Kerala, 1982(2) SLJ 387, See also Som Nath Sharma v. Union of India, 1994(7) SLR 503 (CAT, Chandigarh). Disciplinary proceedings, were initiated. Submission of inquiry report after completion of the enquiry took place - Inquiry report was rejected in toto by the

R. 15]


379

disciplinary authority and appointment of another inquiry officer was ordered. Action of disciplinary authority was held to be bad in law. V. Ramachandran v. Union of India, 1992(1) SLR 57 (CAT, Madras). If in a particular case where there has been no proper enquiry because of some serious defect having crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined, the Disciplinary Authority may ask the Inquiry Officer to record further evidence but that provision would not enable the Disciplinary Authority to set aside the previous enquiries on the ground that the report of the Enquiry Officer does not appeal to the Disciplinary Authority. In this case the basis upon which the Disciplinary Authority set aside the enquiry is that the procedure adopted by the Enquiry Officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand result in a miscarriage thereof. Therefore, the Disciplinary Authority may record his findings on the report and an appropriate order including ordering a de nova enquiry in a case of such nature. Union of India v. P. Thayagarajan, AIR 1999 SC 449: 1999(1) SCC 733: 1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 LIC 169: 1999(81) FLR 76: 1999(94) FJR 347.

Sub-rule (2), (3) and (4) 4. Disagreement with Enquiry officer — When the Enquiry Officer makes the report in favour of a public servant and the disciplinary authority records contrary opinion, the action cannot be said against the provisions of Article 311. Union of India v. H.C. Goel, AIR 1964 SC 364: 1964(4) SCR 718: 1965(1) SCJ 184: 1964(1) LLJ 38: 1964(9) FLR 161; A.N. D”silva v. Union of India, AIR 1962 SC 1130: 1962 Supp(1) SCR 968: 1962(2) SCJ 126. 5. Disciplinary Authority to give its Reasons of Disagreement — In case of the disagreement with the findings of the enquiring officer, the Disciplinary Authority has to record its reasons for its disagreement with those findings. The enquiring officer having found the charge not proved, the Disciplinary Authority should not find the petitioner guilty of the charge without giving its reasons for disagreement and in the absence of the independent finding on the evidence. T.S. Srivastava v. State of Assam, AIR 1972 Gau 2 (SB); Union of India v. Dalip Singh, 1973 SLJ 728; Union of India v. Krishan Kumar, 1982(1) SLR 359, See also S.N. Singh v. Rajasthan Atomic Power Project, 1993(7) SLR 431 Raj (DB). State Bank of India v. Arvind K. Shukla, 2001(1) LLJ 1419: AIR 2001 SC 2398: 2001(3) SLR 602. See also Punjab National Bank v. Kunj Behari, JT 1998(5) SC 548; High Court of Judicature at Bombay v. Shashikant S. Patil, 2000(1) SCC 416: AIR 2000 SC 22: 1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ 10: 2000(2) SLJ 98: 2000(1) LLN 317. Disciplinary Authority disagreed with the Enquiry Report, after recording its reasons, the employee was discharged. Subsequently, the disciplinary authority started the inquiry de nova, after ing an order. It was held that this was illegal.

380


[R. 15

Disciplinary authority had become functus officio. Balloo Singh v. Union of India, 1989(7) SLR 261 (CAT, Jabalpur). Remitting back the inquiry proceeding time and again by the Disciplinary Authority, after the close of evidence and submission of report was done, without recording any reason is improper. Statements of witnesses were not included in the list recorded after the remittance. Enquiry, it was held that it could be remitted only for a limited purpose, for removing some ambiguity in the evidence or to remove some procedural defects. Order remitting back the enquiry proceedings was void. All further proceedings (including the order of dismissal) were also pronounced to be illegal. Bansi Ram, Commandant v. H.P. SSB Bn Shamshi, Kulu District, 1988(4) SLR 55. Only in those cases where the Disciplinary Authority considers it necessary to direct fresh or further enquiry or disagrees with the findings of the Enquiry Officer, it has to record the reasons for its such directions, but there is no such obligation if it agrees with the findings of the Enquiry Officer. State Bank of Bikaner and Jaipur v. Prabhu Dayal Grover, AIR 1996 SC 320: 1995 Supp (3) SCR 785: 1995(6) SCC 279: 1995(7) JT 207: 1996 Lab IC 210: 1996(72) FLR 1: 1996(1) LLJ 288: 1996(1) SLJ 145. In one case that disciplinary Authority without supplying inquiry report gave show cause notice proposing to dismiss the employee on the charges from which employee was exonerated by inquiry officer. Held that it prima facie looks unfair and matter remitted to disciplinary authority to communicate reasons for his disagreement with the Enquiry Officers findings to the employee, hear him and orders according to law. R.R. Gabhane v. State of Madhya Pradesh, 1998(8) SCC 549: 1999(3) LLJ 324. 6. Natural Justice — Though Disciplinary Authority is entitled to differ with Inquiry Officer. It must give opportunity of hearing to the employee, failing which decision of Disciplinary authority being in violation of principles of natural justice is illegal. Member Secretary, Punishing Authority, APSEB v. G. Amruthaiah, 2002(1) SLR 575 AP (DB). A delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring

R. 15]


381

about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the “right to be heard” would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39. Opportunity of hearing by the disciplinary authority. The disciplinary authority can disagree with the findings arrived at by the enquiring officer and act upon his own conclusion, but the only requirement is that the said disciplinary authority must record reasons for his disagreement with the findings of the enquiry officer. If the disciplinary authority gives reasons for disagreeing with the findings of enquiring officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. Held that there is no force in the submission of the learned counsel appearing for the delinquent government servant that before the disciplinary authsority proceeds to award punishment, the delinquent government servant should have been afforded a further opportunity of hearing. Held further that charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiring officer having recorded his findings and thereafter the disciplinary authority having disagreed with the findings by recording the reasons therefore and ultimately awarding minor punishment of stoppage of one increment without cumulative effect, there is no procedural irregularity therein nor can it be said that there has been any violation of principle of natural justice. State of Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(2) JT 103: 1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1) LLN 35. 7. Disagreement with Enquiry Officer or Committee, When High Court to Interfere — It was open to the Disciplinary Authority to accept the evidence of the witnesses and he was not bound by the conclusions reached by Enquiry Committee. This is not a case where it can be said that the finding of Disciplinary Authority is not ed by any evidence nor it can be said that no reasonable person could have reached at such a finding. High Court in the exercise of its certiorari jurisdiction could not have interfered with conclusions reached by Disciplinary Authority in such a case. Railway Board v. Niranjan Singh, AIR 1969 SC 966: 1969(3) SCR 548: 1969(1) SCC 502: 1969(2) SCJ 573: 1969(36) FJR 34: 1969 Lab IC 1368: 1969(18) FLR 300: 1969(2) LLJ 743; Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269. If the Disciplinary Authority does not agree with the finding of the Enquiry Officer, the dissent must be communicated to the employee. Y.K. Verma v. Union of India, 1988(1) SLR 15, 28 para 40 (CAT, Jabalpur). Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of

382


[R. 15

Judicial Review must remain conscious of the fact that if the decision has been arrived at by the istrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the istrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625: 1999(1) SCC 759: 1999(1) LLJ 962: 1999(1) SCJ 265: 1999(1) KLT 38(SN): 1999 LIC 918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65. 8. Bias of Punishing Authority — The proceedings stand vitiated where the punishing authority has already made up his mind. Rajendra Narain Tewari v. Haryana Government, 1973(2) SLR 331: 1973 SLJ 978. He, who hears and decides questions judicially, must be an impartial person free from any bias against the party before him is salient principle of natural justice and this principle also applies to quasi judicial authorities. Madan Gopal Gupta (Dr) v. Agra University, 1975 Lab IC 3. The fact that the Chief Engineer had himself seen the bearings being recovered from the possession of the petitioner whose positive case is that the bearings were planted by A, was bound to be affected by the fact that the competent authority had seen the bearing being recovered. In a sense, the decision of the competent authority was really an empty formality, and it would, therefore, not be possible to sustain the dismissal order ed by him against the petitioner. D.J. Warkari v. K.V. Karanjikar, 1980(1) SLR 839. The allegation must be specific and the employee must be given chance to give reply to the said allegations in specific. After consideration of the show-cause along with the charge-sheet and the reply of the employee in respect of the charges levelled against him the authority is to decide whether there will be an enquiry on the basis of the charge-sheet or not. If on very issuance of the charge-sheet before receipt of reply the authority decide that an enquiry would be held then it smacks of bias. The authority appears to be biased without waiting for the reply to the charge-sheet decides that any enquiry would be held against the employee concerned. In fact, charge-sheet/show cause or its reply is a matter of serious consideration of the authority inasmuch as if the authority is satisfied with the reply of the employee to the charge-sheet/show cause, the authority may not or need not have to proceed with any enquiry and if the authority is not satisfied then and then only there would be enquiry. If in the charge-sheet itself it is stated that an enquiry would be held on the basis of the charges and the employee is asked to give reply to the charge-sheet, then there remains no meaning in submission of the reply inasmuch as the authority has already decided to hold the enquiry and this is real bias. Tarakeswar Nandi v. Food Corporation of India, 2002(1) SLR 480 Cal. 9. Enquiry Officer acting as Disciplinary Authority— One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as “Debet esse Judex in Propria Causa”, which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal or there may be bias as to the subject-matter etc. Amar Nath Chowdhury v. Braithwaite and Company Ltd., 2002(1)

R. 15]


383

SCR 184: AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ 1048: 2002(1) SCJ 268: 2002(2) SLJ 433: 2002(111) Comp Cas 707. In this case, the question which arose was whether an authority can sit in appeal against its own order ed in the capacity of Disciplinary Authority? The facts were that the then Chairman-cum-Managing Director of the Company acted as a Disciplinary Authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the delinquent. It was held that such a dual function is not permissible on of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provisions, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. Amar Nath Chowdhury v. Braithwaite and Company Ltd. (Supra). In another case Regional Manager was the enquiring authority. It was not proper for the Regional Manager to consider the enquiry report submitted by himself and act as disciplinary authority. When Regional Manager was the enquiring authority, authority superior in rank to him could be disciplinary authority. Punjab & Sind Bank v. Chand Singh, 2001(4) SLR 694 P&H. 10. Disciplinary Authority is not Bound by Findings of Enquiry Officer — The Disciplinary authority is not bound by the findings of Enquiry Officer. He has to consider the evidence before him. Though he has to consider Enquiry Officer”s report, he is not bound by the letters” finding. Krishna Chandra Tandon v. Union of India, AIR 1974 SC 1589: 1974(4) SCC 374: 1974 Lab IC 1010: 1974 SLJ 415: 1974(2) SLR 718. The Disciplinary Committee is neither an appellate nor a revisional body over the Inquiry Officer”s report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the material collected in such inquiry as well as the views expressed by the Inquiry Officer thereon. The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the disciplinary authority should “discuss materials in detail and contest the conclusions of the Inquiry Officer”. Otherwise the position of the disciplinary authority would get relegated to a subordinate level. High Court of Judicature at Bombay, through its Registrar v. Shashikant S. Patil, 1999(5) SLR 615 (SC). If in a particular case where there has been no proper enquiry because of some serious defect having crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined, the Disciplinary Authority may ask the Inquiry Officer to record further evidence but that provision would not enable the Disciplinary Authority to set aside the previous enquiries on the ground that

384


[R. 15

the report of the Enquiry Officer does not appeal to the Disciplinary Authority. Union of India v. P. Thayagarajan, AIR 1999 SC 449: 1998 Supp (3) SCR 114: 1999(1) SCC 733: 1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 Lab IC 169: 1999(81) FLR 76: 1999(94) FJR 347 While differing from the findings of Enquiry Officer, the Disciplinary Authority should afford adequate opportunity to the employee before giving a dissenting verdict. Y.K. Verma v. Union of India, 1988(1) SLR 15 (CAT, MP). 11. Disciplinary Authority to Apply Mind — It is imperative for the Disciplinary Committee to discuss materials in detail and contest conclusions of the Inquiry Officer. High Court of Judicature at Bombay v. Shashikant S. Patil, 2000(1) SCC 416: 1999 Supp (4) SCR 205: AIR 2000 SC 22: 1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ 10: 2000(2) SLJ 98: 2000(1) LLN 317. (ii) As per the relevant rules, competent authority to impose penalty of dismissal was Chairman-cum-Managing Director but he had mechanically approved the proposal of the Director (Commercial) who had also not examined the matter before making his proposal. Held that whenever an Authority decides a matter, which entails civil consequences to the person concerned, it must speaking order giving reasons. Held further that the Chairman-cum-Managing Director who is the Competent Authority to impose the penalty of dismissal upon the petitioner has not ed the impugned order of dismissal after applying his mind to the inquiry report, representation of the petitioner against the inquiry report and other facts and circumstances on record. He had mechanically approved the proposal of the Director (Commercial), who had also not examined the matter before making his proposal. In fact, the matter has been dealt with as routine istrative matter, whereas, it was a quasi-judicial matter involving service career of the petitioner and the Competent Authority was required to speaking order by giving reasons for imposing the penalty after considering the inquiry report, representation of the petitioner and other material concerning disciplinary proceedings on record. Ashok Paper Mills Kamgar Union v. Union of India, 2000(10) SCC 28: 2000(2) LLJ 659: 2000(4) LLN 18: 2000(87) FLR 437. (iii) An assistant or official prepared office note. Note was signed by Director and he did not any separate or independent order showing that he was satisfied for reasons to be recorded by him. Director did not apply his mind. Order of dismissal set aside for infraction of Article 311(2)(b) and the Disciplinary Rules. Union of India v. Rajendra Prakash Tewari, 1970 SLR 392 (Delhi); Bibhuti Bhushan Paul v. State of West Bengal, AIR 1967 Cal 29, see also State of Punjab v. Bakhtawar Singh, 1972 SLR 85; Aarander Singh v. General Manager, Northern Railway, 1973 SLJ 569: 1973(1) SLR 846. (iv) Where the Disciplinary Authority failed to apply its mind to the report and record of the inquiry before inflicting the punishment to the prejudice of the petitioner, held, he failed to act justly and fairly but acted capriciously. Order of removal quashed. Badrul Huda Ahmed v. State of Assam, 1972 SLR 62 Assam.


R. 15]

385

(v) The case file during the course of enquiry including the statements of prosecution and defence witnesses had been gutted, in the fire. The Disciplinary Authority ed penalty order on the basis of enquiry report. The Appellate Authority rejected the appeal. Orders were quashed being based on no evidence. Chatter Singh v. Deputy Commissioner, 1982(1) SLR 163. Where —. (a) the findings of the Enquiry Officer are based on flimsy grounds, and. (b) the Disciplinary Authority and the Appellate Authority do not even look into those findings,. The orders of the Disciplinary and Appellate Authorities are vitiated by nonapplication of mind and cannot be said to be proper speaking orders. N.S. D”Mello v. Union of India, 1990(6) SLR 280 (CAT, Jabalpur). 12. Dismissal in default — Application informed the Registry by Post, praying for disposal of his case on the basis of his pleadings and stating that he did not want oral hearing. The letter did not come to the notice of the who decided the case. Application was dismissed for default. It was held that sufficient cause existed for restoration of the application. K. Vaidyanathan v. Director General, Departmental of Telecommunications, New Delhi, 1988(4) SLR 606 (CAT Madras). See also S.N. Singh v. Rajasthan Atomic Power Project, 1993(7) SLR 421 Raj (DB). Disciplinary Authority must consider every allegation in the charge and the detailed explanation thereto. Merely saying that the matter has been considered, is not enough. It shows non-application of the mind. A Palaniswamy v. Union of India, 1989(5) SLR 239 (CAT Madras). See also Dheru Ram v. State of Punjab, 1993(8) SLR 142 P&H (DB). The employee is dismissed from duty due to unauthorised absence. Though the copy of dismissal order is not supplied to him the dismissal becomes valid. Charanjit Singh Khurana v. Union of India, 1994(2) SLR 519. 13. Disciplinary Authority Whether to Give Reasons for Accepting the Findings of Enquiry officer — Where disciplinary authority disagrees with the enquiry officer on certain articles of charges, then before recording its finding, it is duty bound to record its tentative reasons for such disagreement and give the same to delinquent officer for opportunity to represent. State Bank of India v. Arvind K. Shukla, 2001(1) LLJ 1419: AIR 2001 SC 2398: 2001(3) SLR 602. It is conceivable that if the State Government does not accept the findings of the Enquiry Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusion of the Tribunal, though even in such a case it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, as a matter of law, it could not be said that the State Government cannot impose the penalty in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. State of Madras v. A.R. Srinivasan, 1967(1) SCJ 855: 1969(II)

386


[R. 15

SCWR 524: AIR 1966 SC 1827; State of Haryana v. Ram Chander, 1976 SLJ 689: 1976(2) SLR 690; State of Haryana v. Ram Kumar, 1982(1) SLR 267; Shaymlal Tyagi v. H.S.E.B., 1982(2) SLR 575. If a Disciplinary Authority agrees with the recommendations of the Inquiry Authority, reasons need not be given. If it disagrees then reasons have to be given though not elaborately or in depth. K.V.Hanumantha Rao v. High Court of A.P., 1988(2) SLR 464 para 11 CAT (DB) (Reviews case law). Disciplinary authority, if it agrees with the findings of the Inquiry Officer, need not give reasons. Ram Singh v. Union of India, 1988(6) SLR 218 (CAT Chandigarh). It has now been settled by the Supreme Court that when the Disciplinary Authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in of such findings, it is not necessary for the punishing authority to reappraise the evidence to arrive at the same findings. State Bank of Bikaner and Jaipur v. Prabhu Dayal Grover, AIR 1996 SC 320: 1995(6) SCC 279: 1995(2) BC 485: 1996 Lab IC 210: 1996(72) FLR 1: 1996(1) LLJ 288: 1996(1) SLJ 145. 14. Quasi-judicial Authorities should Indicate Reasons — The quasi judicial authorities should indicate the reasons. But if the reasons can be found out either from the order itself or from other documents it would not be proper to strike down the order merely because the formal reasons had not been recorded in the order itself. Hari Prasad Singh v. Commissioner of Income Tax, AIR 1972 Cal 27; Nand Kishore Prasad v. State of Bihar, 1978 SLJ 591: 1978(2) SLR 46: AIR 1978 SC 1277: 1978(3) SCR 708: 1978(3) SCC 366: 1978 Lab IC 1106. The punishing authority is a quasi judicial authority and his order is subject to appeal etc. As a quasi judicial authority, it is incumbent upon him to write a reasoned order so that the Appellate Authority may know as to what prevailed with the punishing authority while punishing the delinquent officer. No hard and fast principles can be laid down as to what should be written in the order. It is not necessary that he should write a detailed order, but it is required that he should record reasons in the order, so that the delinquent can effectively challenge them in appeal etc. Bhagat Raja v. Union of India, AIR 1967 SC 1606: 1967(3) SCR 302; Vijay Singh Yadav v. State of Haryana, 1971(1) SLR 720; Tarlochan Singh v. State of Punjab, 1975 SLJ 387; P.K. Mittal v. State of Punjab, 1982(2) SLR 267. Disciplinary Authority without supplying inquiry report gave show cause notice proposing to dismiss the employee on the charges from which employee was exonerated by inquiry officer. Held that if prima facie looks unfair and matter remitted to disciplinary authority to communicate reasons for his disagreement with the Enquiry Officers findings to the employee, hear him and orders according to law. R.R. Gabhane v. State of Madhya Pradesh, 1998(8) SCC 549: 1999(3) LLJ 324. 15. Disciplinary Authority: Power to interfere with other enquiries— If in a particular case where there has been no proper enquiry because of some serious defect having crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined, the Disciplinary Authority may ask the Inquiry Officer to record further evidence but that provision would not enable the Disciplinary

R. 15]


387

Authority to set aside the previous enquiries on the ground that the report of the Enquiry Officer does not appeal to the Disciplinary Authority. In this case the basis upon which the Disciplinary Authority set aside the enquiry was that the procedure adopted by the Enquiry Officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand result in a miscarriage thereof. Therefore, the Disciplinary Authority may record his findings on the report and an appropriate order including ordering a de nova enquiry in a case of this nature. Union of India v. P. Thayagarajan, AIR 1999 SC 449: 1999(1) SCC 733: 1998(5) SLR 734: 1999(2) SLJ 72: 1999(1) LLJ 507: 1999 LIC 169: 1999(81) FLR 76: 1999(94) FJR 347. 16. Order of Disciplinary Authority to Show what Charges had been Established — Where the order of disciplinary authority does not show what charges against the delinquent officer had been established, the said order is not a speaking order and it cannot be upheld. State of Punjab v. Bakhtawar Singh, 1972(4) SCC 730: AIR 1972 SC 2083: 1972 SLR 85 (SC). Neither the finding nor the recommendations of the Inquiry Officer are binding on the Disciplinary Authority. If there are charges against the employee, it is for the Disciplinary Authority to be satisfied that the employee is guilty and deserves punishment proposed. The satisfaction of the Inquiry Officer cannot take place of the satisfaction of the Disciplinary Authority, as this would amount to his acting in a mechanical way. After the report is received, the Disciplinary Authority is entitled to consider the report and the evidence led against the delinquent employee. The Disciplinary Authority may agree with the report or may differ either wholly or partially from the conclusions recorded in the report. The enquiry report along with the evidence recorded constitute material on which the Disciplinary Authority has ultimately to act. Dilbir Singh v. State of Punjab, 1999(3) SLR 140 P&H. Consideration of the enquiry report in the light of the representation made by the government employee cannot be taken to be a mere formality because fair play requires recording of reasons when order affects the right of a person. Recording of reasons is also an assurance that the Authority concerned applied its mind to the facts on record. It also aids the appellate or Revisional Authority or supervisory jurisdiction of the High Court under Article 226 of the Constitution of India to see whether the Authority concerned acted fairly and justly to meet out justice to the aggrieved person. Dilbir Singh v. State of Punjab (supra). 17. Order should be a Speaking Order — To understand the approach of the punishing authority and also the mind of the Appellate Authority and the grounds on which the impugned orders have been ed, it is necessary that the order should be a speaking order and should give the grounds on which it has been ed. Mohinder Singh v. State of Punjab, 1968 Cur LJ (P&H) 476; Ram Sahai v. G.M., Northern Rly, 1967 Cur LJ (P&H) 296; Bhagat Raja v. Union of India, AIR 1967 SC 1606; Rajinder Singh v. Punjab State, 1969 Cur LJ 821: 1969 SLR 754; Rajinder Pal v. State of Punjab, 1971(2) SLR 130: AIR 1971 Punjab 290; H.K. Khanna v. Union of India,

388


[R. 15

1971(1) SLR 618; Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277: 1978(3) SCR 708: 1978(3) SCC 366: 1978(2) SLR 46: 1978 SLJ 591: 1978 Lab IC 1106: 1978(2) LLJ 84: 1978 SLJ 591: 1978(2) LLN 278. The matter can not be dealt with as routine istrative matter as it is a quasi judicial matter involving service career of the employee and the Competent Authority is required to speaking order by giving reasons for imposing the penalty after considering the enquiry report, representation of the petitioner and other material concerning disciplinary proceedings on record. Whenever an Authority decides a matter, which entails civil consequences to the person concerned, it must speaking order giving reasons. Yashpal Singh v. National Textile Corporation Ltd., 1999(1) SLR 680 HP (DB). In one case the Disciplinary Authority did not agree with the finding of the Enquiry Officer and issued the notice to the petitioner to show cause as to why he should not be punished as he did not agree with the finding recorded by the Enquiry Officer. Order, though run into seven typed pages, it was as good as a non-speaking order. Only in seven lines the Disciplinary Authority said that he does not agree with the cause shown by the petitioner in his reply. The impugned order set aside as it was a non-speaking order. Paras Ram v. State of Rajasthan, 1999(1) SLR 581 Raj. After a regular enquiry the Enquiry Officer held that the charge was not proved. The Disciplinary Authority, however, did not agree with the report of the Enquiry Officer and came to the conclusion that the charge against the respondent stood proved. The respondent was consequently served with notice to show cause as to why he should not be removed from service. After taking into consideration his explanation, the following order was ed:— “I have thoroughly gone through the defence put up. There is no new point put up by him which needs further consideration. He is considered guilty of charge of theft and is removed from service”. The order does not show as to what were the points raised by the respondent and why were those found to be not tenable. Order quashed not being a speaking order. Union of India v. Krishan Kumar, 1982(1) SLR 359. The respondent had raised a plea that a witness had been coerced by the Enquiry Officer to make a statement against him even though on an earlier occasion he had made a statement in his favour. This was an important plea about the character of the Enquiry Officer. If the dismissing authority wanted to accept the report of the Enquiry Officer, it had to give a finding that the said Enquiry Officer was, not proved to be biased. No such thing is mentioned in the order. The order of punishing authority was held not being a speaking order. Union of India v. Lila Dhar, 1982(1) SLJ 646. 18. Extraneous Matters not be Considered — The disciplinary authority should not take into consideration extraneous matters. He is to act in quasi judicial manner. Ramarao Laxmikant Shirkhedkar v. ant General, Maharashtra, AIR 1963 Bom 121; State of Mysore v. K. Manche Gowda, AIR 1964 SC 506: 1964 (4) SCR 540.

R. 15]


389

Neither in the charge-sheet nor in the show cause notice, was ever a reference made that the previous service record of the Officer will be considered by the disciplinary authority. The disciplinary authority took into consideration the past record the ordered dismissal. Order quashed. Ramshai v. Board of Revenue, Rajasthan, 1977 SLJ 241: 1977(1) SLR 605; General Manager, Northern Railway v. Harbans Singh, 1979(3) SLR 590. In a departmental inquiry finding on a charge not included in the charge-sheet is not permissible. Y.K. Verma v. Union of India, 1988(1) SLR 15, 25, 27 para 32, 39 (CAT Jabalpur). Consideration of extraneous material in the form of adverse comments of another Officer while the report of Enquiry Officer was in favour of employee. Matter remanded with the direction that disciplinary authority should decide the matter afresh only on the basis of the relevant material excluding from consideration the extraneous material in the form of adverse comments of the other officer. Uttar Pradesh State Agro Industrial Corporation Ltd. v. Padam Chand Jain, 1995(30) ATC 328: 1995(4) SLR 742: 1995(2) LLJ 697. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings or in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case etc. High Court of Judicature at Bombay v. Shashikant S. Patil, 2000(1) SCC 416: AIR 2000 SC 22: 1999 Lab IC 3833: 1999(83) FLR 1001: 1999(5) SLR 615: 2000(1) SCJ 10: 2000(2) SLJ 98: 2000(1) LLN 317. Consideration of extraneous material in the form of adverse comments of another Officer while the report of Enquiry Officer was in favour of employee, held not proper. Matter remanded with the direction that disciplinary authority should decide the matter afresh only on the basis of the relevant material excluding from consideration the extraneous material in the form of adverse comments of the other officer. Uttar Pradesh State Agro Industrial Corporation Ltd. v. Padam Chand Jain, 1995(30) ATC 328: 1995(4) SLR 742: 1995(2) LLJ 697. 19. Suspicion, no Substitute for Proof — However strong the suspicion is, it can not be substituted for conclusive proof. Penalty cannot be imposed. K.S. Yadav v. Municipal Corporation of Delhi, 1981(1) SLJ 394. Though the degree of proof required in Disciplinary Proceedings is not of the standard required in criminal case but the suspicion cannot be substituted for proof even in Disciplinary Proceedings. Ministry of Finance v. S.B. Ramesh, 1998(3) SCC 227: AIR 1998 SC 853: 1998(78) FLR 700: 1998(1) SLR 618: 1998(2) SLJ 67: 1998 Lab IC 623: 1998(1) LLN 968 20. High Court not to Review Materials in a Writ, If Enquiry Properly Held — In departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to

390


[R. 15

its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625: 1999(1) SCC 759: 1999(1) LLJ 962: 1999(1) SCJ 265: 1999(1) KLT 38(SN): 1999 Lab IC 918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65. A conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man. Syed Rahimuddin v. Director General, CSIR, AIR 2002 SC 2418: 2002 SCC (L&S) 251: 2001(3) JT 609: 2002(4) SLR 165 (SC): 2001(89) FLR 427: 2001 AIRSCW 2388: 2001(2) AllWC 2388: 2001(2) AllWC 1247: 2001(1) Cur LR 36. Where there are some relevant materials which the disciplinary authority has accepted and which may reasonably the conclusion, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before High Court. Union of India v. Sardar Bahadur, 1971(II) SCWR 712: 1972 SLR 355; State of Andhra Pradesh v. Sree Rama Rao, 1964(3) SCR 28 at page 33: 1964(1) SCJ 402: AIR 1963 SC 1723: 1964(3) SCR 25: 1964(2) LLJ 150: 1964(1) SCJ 402; State of A.P. v. Chitra Venkata Rao, AIR 1975 SC 2151: 1976(1) SCR 521: 1975(2) SCC 557: 1975 Lab IC 1585: 1976(2) SCJ 227: 1975 SLJ 772: 1976(1) SLR 653; D.J. Warkari v. K.V. Karanjkar, 1980(1) SLR 838. 21. High Court whether to Appraise Evidence in Writ — It was pointed out by the Supreme Court in case of State of Orissa v. Murlidhar, AIR 1963 SC 404 that in a proceeding under Article 226 and 227 of the Constitution, the High Court is not to sit in appeal over the finding recorded by a competent Tribunal in a departmental enquiry. If the High Court purports to re-appreciate the evidence for itself that would be outside its jurisdiction. If, however, it is shown that the findings recorded by the Tribunal, are not ed by any evidence, the High Court would be justified in setting aside the findings. Muralidhar Mishra v. District Judge, Cuttack, 1977 SLJ 344. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. State of Haryana v. Rattan Singh, 1977(2) SCJ 140: AIR 1977 SC 1512: 1977(2) SCC 491: 1977 Lab IC 845: 1977(1) SLR 750: 1977 SLJ 408; Somnath Sahu v. State of Orissa,

R. 15]


391

1981(2) SLR 550 (SC); Kashi Ram Verma v. Municipal Committee, Mausa, 1981(1) SLJ 203: 1981(1) SLR 290 (SC). Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the istrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the istrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625: 1999 (1) SCC 759: 1999 (1) LLJ 962: 1999 (1) SCJ 265: 1999 (1) KLT 38(SN): 1999 Lab IC 918: 1999(1) LLN 1067: 1999(81) FLR 462: 2000(1) SLJ 65. If the disciplinary authority gives reasons for disagreeing with the findings of enquiring officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. Held that there is no force in the submission of the learned counsel appearing for the delinquent government servant that before the disciplinary authority proceeds to award punishment, the delinquent government servant should have been afforded a further opportunity of hearing. Held further that charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiring officer having recorded his findings and thereafter the disciplinary authority having disagreed with the findings by recording the reasons therefore and ultimately awarding minor punishment of stoppage of one increment without cumulative effect, there is no procedural irregularity therein nor can it be said that there has been any violation of principle of natural justice. State of Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(2) JT 103: 1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1) LLN 35. Appreciation of evidence which has already been scrutinised by the Enquiry Officer as also by Disciplinary proceedings is permissible where the findings are perverse and are not ed by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached and therefore the Courts have power to interfere in the matter. Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734: 1999(7) SCC 739: 1999(83) FLR 534: 2000(96) FJR 377: 1999(5) SLR 248: 2000(1) SLJ 174: 2000(1) LLN 39. 22. Challenge to Departmental proceedings by Public Interest Litigation— Departmental proceedings against IPS officer on the ground of misconduct was challenged by a practising advocate by way of Public Interest Litigation. Held, it is essentially a matter between employer and employee. A stranger much less a practising advocate. It was held that a mere busy-body who has no interest cannot invoke the jurisdiction of the Court. In respect of the departmental proceedings which are initiated or sought to be initiated by the Government against its employees, a person who is not even remotely connected with those proceedings cannot challenge any aspect of the departmental proceedings or action by filing a Writ Petition in the High Court or in this

392


[R. 15

Court. Disciplinary action against an employee is taken by the Government for various reasons principally for “misconduct” on the part of the employee. This action is taken after a “domestic” enquiry in which the employee is provided an opportunity of hearing as required by the constitutional mandate. It is essentially a matter between the employer and the employee, and a stranger, much less a practising advocate, cannot be said to have any interest in those proceedings. Public Interest of general importance is not involved in disciplinary proceedings. In fact, if such petitions are entertained at the instance of persons who are not connected with those proceedings. It would amount to an abuse of the process of Court. Rajnit Prasad v. Union of India, AIR 2000 SC 3469: 2000(9) SCC 313: 2000(2) JT 31: 2000(1) SLR 663: 2000(2) LLN 86. 23. Minor Irregularity in Conducting Enquiry does not Vitiate a Correct Finding — Any minor irregularity in the matter of conducting the enquiry cannot vitiate a finding which is so obviously correct. Once it is held that the respondent was properly found guilty under charge No. 1, it is unnecessary to go into the other charges. State of U.P. v. Om Prakash Gupta, 1970(1) SCWR 139: AIR 1970 SC 679: 1969(3) SCC 775: 1969 SLR 890: 1970 Lab IC 568. 24. Public Service Commission: Advice of — (i) The disciplinary authority should not act mechanically on the advice of the Public Service Commission but should apply his own mind to the case. Ramchandra Chaudhri v. Secretary to Government, West Bengal, AIR 1964 Cal 265; Iswar Chandra Mohanty v. State of Orissa, AIR 1966 Ori 173; J.L.Mair v. State of Punjab, AIR 1968 Punjab 324; Shrikrishan v. State of M.P., AIR 1970 MP 162. Governor cannot consult the P.S.C. in the case of the judicial affairs and accept its advice and act accordingly. The advice should be of no other authority than the High Court. Baldev Raj Guliani v. P&H High Court, 1977(1) SCR 425: AIR 1976 SC 2490: 1976(4) SCC 201: 1976(2) SLR 758: 1976 Lab IC 1633: 1977(1) LLN 14: 1976 SLJ 601: 1976 SLWR 511: 1976 SCC (Lab) 571. (ii) The opinion given by P.S.C. is not binding. The impugned order is not vitiated if the opinion of P.S.C. is not followed. There is no warrant of law that if no reasons are given for not following the opinion of P.S.C., the order is bad. O.N. Saxena (Dr.) v. State of Rajasthan, 1980 SLJ 582. 25. Public Service Commission, Consultation with — The provisions of Article 320(3)(c) of the Constitution were not mandatory and did not confer any rights on the public servant. Termination of service without consultation of Public Service Commission not invalid. Ram Gopal Chaturvedi v. State of M.P., AIR 1970 SC 158: 1970(1) SCR 472: 1969(2) SCC 240: 1969 SLR 429: 1970(1) LLJ 367: 1970(1) SCJ 257: 1969(1) SCWR 1115, State of U.P. v. M.L. Srivastava, AIR 1957 SC 192; J.M.J.S. Alexandra Gonsalves Pereira v. of Goa, 1982(2) SLJ 132. 26. Commissions” Recommendations of Advice, Non-supply of, to Delinquent Officer for his Comments — Article 311 of the Constitution is not controlled by Article 320. Therefore, the reasonable opportunity contemplated under Article 311 does not cover the furnishing of the advice of the Commission to the delinquent officer for offering his remarks on such advice or recommendations. On nonsupply of Commissions” report, the impugned order is not vitiated. Chief Engineer v. A. Changalvarayan, 1982(2) SLR 662.

R. 15]


393

27. Disciplinary Authority Obtained the Views of Vigilance Commissioner — Disciplinary Authority was of the view that no inquiry need be initiated but proceedings initiated at the directions/recommendations of CVC. Held that Disciplinary Authority did not apply his independent mind for framing of the charges and therefore, the same are tainted with illegality N.P.Kudva v. Syndicate Bank, 2002(1) SLR 55 Kar. If the disciplinary authority arrived at its own conclusion on the material available to it, its finding and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views on the very same material. Sunil Kumar Banerjee v. State of West Bengal, 1980(3) SCR 179: AIR 1980 SC 1170: 1980(3) SCC 304: 1980 Lab IC 654: 1980(2) SLR 147: 1980(40) FLR 434: 1980 SCC (Lab) 369: 1980(2) SCJ 327. The Enquiry Officer sent enquiry report to the Disciplinary Authority through the Chief Vigilance Commissioner, who as per Government practice is required to tender confidential comments and recommendations and also advising what penalty should be imposed. These comments and recommendations not brought to the notice of delinquent officer. Opinion of an august body like Central Vigilance Commission would obviously carry great weight with the Disciplinary Authority in reaching a final conclusion. Impugned order bad in law. A.K. Roy Chaudhry v. Union of India, 1982(1) SLR 443: 1982(1) SLJ 186 Guj. “Advice” of the Central Vigilance Commission is to be restricted to facts and findings and not to extend to punishment which is prerogative of the Disciplinary Authority. The Vigilance Manual, Vol. 1, 4th Ed., when using the word “advice” has in mind only facts and findings. The Vigilance Commission exceeds its powers in suggesting dismissal. (Suggestion made that Government of India should advise the Central Vigilance Commission not to give advice as to punishment). N. Sundaramurthy v. Lt Governor of Podicherry, 1990(12) ATC 553 Mad. [Union of India v. Parmanand Nanda, AIR 1989 SC 1185: 1989(2) SCR 19: 1989(2) SCC 177: 1989 SCC (L&S) 303: 1989(2) JT 132: 1989 Lab IC 1338: 1989(75) FJR 168: 1989(10) ATC 30: 1989(42) ELT 320: 1989(2) SLR 410 followed]. Recommendations of the Chief Vigilance Officer though not binding on the disciplinary authority but disciplinary authority ed the order of removal from service at the time when the directive of the vigilance officer was operative. Held that it can be presumed that the disciplinary authority was acting in accordance with the said directive and imposed punishment in accordance with the recommendation made by the Chief Vigilance Officer. The order was set aside and the matter was remitted back to the disciplinary authority for reconsideration. Satyendra Chandra Jain v. Punjab National Bank, 1997 (11) SCC 444. 28. Charge for Major Penalty, Minor Penalty can be Imposed — Chargesheet for major penalty, minor penalty can be imposed. M.M. Dutta v. Union of India, AIR 1969 Cal 604; K.K. Mittal v. Union of India, 1974(2) SLR 602 Delhi; Keshri Mal v. State of Rajasthan, 1979(3) SLR 1.

394


[R. 15

However where the disciplinary proceedings were initiated for a charge which entails minor penalty, the Disciplinary Authority is not permitted to convert it to major penalty after completion in of inquiry. Deep Chand v. Union of India, 2002(3) SLR 665 Gau. When an inquiry has been held for imposition of a major penalty and finally minor penalty is awarded, the suspension should be considered unjustified and in of F.R. 54B the employee should be paid full pay and allowances for the period of suspension by ing a suitable order under F.R. 54-B. S.P. Naik v. Board of Trustees, Mormugao Port Trust, Goa, 1999(3) SLR 577 Bom (DB). 29. Punishment After Retirement — Order of suspension ed pending enquiry into charges. Petitioner submitted written explanation denying the truth of charges. Enquiry not started. Petitioner”s superannuation after the notice served on him to attend enquiry. Petitioner replied that authorities had no jurisdiction to conduct any enquiry as he had retired. Enquiry held ex parte and show cause notice issued why a cut of 25 per cent should not made in his pension and thereafter penalty imposed. Order held illegal and void. N.L. Sastry v. State of A.P., 1969 SLR 372; State of Assam v. Pa Ram, AIR 1965 SC 473. A disciplinary proceeding against a Government servant comes to an end when he retires and there is no power in Government to retain him in service so that a punishment may be imposed on him in a pending disciplinary proceeding. K.S. Rajasekhriah v. State of Mysore, 1968 SLR 269; Subba Rao v. State of Mysore, 1963 (1) Mys LJ 80; A.R.R. Deshpande v. Union of India, (1971) 2 SLR 776; O.P.Gupta v. Union of India, 1981 (3) SLR 778; Mukhtiar Chand Dhir v. State of Punjab, 1982 (1) SLR 889. Where in the service rules no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation. Held that in view of the absence of such provisions in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Bhagirathi Jena v. Board of Directors, O.S.F.C., 1999(3) SCC 666: AIR 1999 SC 1841: 1999(3) JT 53: 1999(2) SLR 355: 1999(1) LLJ 1236: 1999 Lab IC 2080: 1999(2) LLN 993: 1999(82) FLR 143: 1999(95) FJR 21: 1999(3) SLJ 294. When no disciplinary action is initiated under All India Service Rules while the employee was in service disciplinary action cannot be taken after the retirement of the employee and similar proceedings initiated under State Rules prior to promotion of the candidate to All India Service cannot be continued after such promotion. State of Rajasthan v. P.D. Paliwal, 2002(2) SLR 164 Raj (DB). In another case it was held that the Government can conduct inquiry into misconduct, negligence or financial irregularity even after retirement of an employee. D.C. Mazumdar v. Union of India, 1999(5) SLR 338 Delhi (DB): 1999(77) DLT 442: 1999(1) AD(Delhi) 649: 1999(1) LLJ 871.

R. 15]


395

The enquiry proceedings can be legally continued against the officer even if he has been prematurely retired from service. P.K. Jain v. State of Haryana, 1999(1) SLR 337 P&H (DB); relying upon Ishar Singh v. State of Punjab, 1994(3) Recent Services Judgments (RSJ) 543: 1993(4) SLR 655 (P&H) (FB). 30. Withholding of pension— During pendency of minor penalty proceedings against retired employee the pension was withheld. Held that the pension cannot be withheld. AJM Prasasada Rao v. Chairman, Visakhapatnam Port Trust, Visakhapatnam, 2002(1) SLR 478. 31. Punishment on Report of Enquiry Officer not Appointed by Disciplinary Authority — Where the punishing authority ed orders of removal of petitioner on the basis of report of Enquiry Officer who had been appointed by an authority who was not competent to take disciplinary action against the Government servant, held, the order of removal cannot be maintained as the disciplinary proceedings were initiated by an authority who had no right to initiate the same. Baldev Singh v. Secretary to Government of Punjab, 1969 Cur LJ 625. In another case the Disciplinary authority being a material witness in the disciplinary proceeding was replaced by an ad hoc disciplinary authority but the enquiry officer was appointed by the Original disciplinary authority. On the basis of report of such enquiry officer and evidence led in the enquiry, the ad hoc disciplinary authority ed order of removal from service. There was no material to indicate prejudice caused to the employee as a result of such appointment and there was no allegation of any bias or mala fides against the enquiry officer or presenting officer so appointed in the conduct of enquiry. It was held that in absence of any prejudice or allegations, order of disciplinary authority should not have been set aside and action of disciplinary authority should not have been quashed only on a technical ground that the appointment of Enquiry Officer was made by earlier Dislinary Authority. Assistant Superintendent of Post Offices v. G. Mohan Nair, AIR 1999 SC 2113: 1999(1) SCC 183: 1998(6) SLR 783: 1999(2) LLJ 986: 1999 Lab IC 2349: 1999(3) LLN 420: 2000(84) FLR 91 32. Punishment with Retrospective Effect — Order imposing punishment of dismissal can not be ed with retrospective effect. Punjab State Electricity Board v. Gurpal Singh Bhamra, (1989) 3 SLR 19 (P&H) (S.S. Sodhi, J.). See also Dharam Veer Sharma v. United Commercial Bank, 1997 (3) SLR 319 (P&H); Gurudas G. Priolkar v. Union Bank of India, 1997 (5) SLR 157 (Bom) (DB); Subhashish Mukherji v. State of Haryana, 1997 (5) SLR 746 (P&H); Satyendra Jeet Singh v. Union of India, ATR (1986) 2 CAT 268. An order of dismissal with retrospective effect is in substance an order of dismissal as from the date of the order with the super added direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The court cannot a new order of dismissal, but surely it can give effect to the valid and severable part of the order. R. Jeevaratnam v. State of Madras, (1966) II SCWR 464:

396


[R. 15

AIR 1966 SC 951: 1966(2) SCR 204: (1967) 1 SCJ 404: 1967 SLR 657. In Puran Singh v. State of Punjab, 1982 (2) SLR 126, the dismissal was also quashed. Order dated 17-10-1950 that appellant be dismissed from service w.e.f the date of suspension, that is to say from 20-05-1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949. First part of the order is valid and second part in invalid. The invalidity of the second part does not effect the first part of the order. Appellant lawfully dismissed. Order of dismissal as from 17-10-1950 is valid and effective. R. Jeevaratnam v. State of Madras, 1966(II) SCWR 464: AIR 1966 SC 951: 1966(2) SCR 204: 1967 SLR 657: 1967(14) FLR 285: 1967(1) LLJ 391: 1967(1) SCJ 404. 33. Punishment, Discrimination in Imposing of — Two Government servants were convicted for the same offence arising not of the same incident. It was not open to the disciplinary authority to allow one to his duties and to remove the other from service. Plea of hostile discrimination is well founded. Dost Mohammed v. Union of India, 1981(3) SLR 274 AP. See also S.N. Singh v. Rajasthan Atomic Power Project, 1993(7) SLR 421 Raj (DB). Delinquent with four other persons charged with beating and some of the charges were proved but Disciplinary authority ed the order of dismissal of delinquent but order of stoppage of five increments in respect of others. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. Held that it was not open for the disciplinary authority to impose different punishments for different delinquents for same charge. State of Uttar Pradesh v. Raj Pal Singh, 2001 Supp (1) JT 44: 2001(4) SLT 294. Merely because one of the employees was wrongly given the lesser punishment compared to others against whom there was a proved misconduct is not a ground that they too should also be given the lesser punishment. Balbir Chand v. Food Corporation of India Ltd., AIR 1997 SC 2229: 1996 Supp (10) SCR 156: 1997(3) SCC 371: 1997(2) LLJ 879: 1997(77) FLR 267: 1997(3) LLN 82: 1998(79) FLR 494: 1997(1) SLR 756. One of the delinquents granted back wages while ing the consequential order for reinstatement while the other delinquent denied back wages on flimsy grounds. Held that in the absence of very relevant and exceptional circumstances, the consequential order should also be of similar import in both the cases therefore denial of back wages by Tribunal is improper. Ramesh Chander v. Delhi istration, 1996(10) SCC 409: 1996(3) SLJ 124: 1996(5) SLR 166: 1996(74) FLR 2235: 1997(3) LLJ 509. However in another case the court took a different view. Court Martial and conviction due to involvement of delinquents in agitation became final. Thereafter in proceedings under Rule 19 of C.C.S. Rules order of compulsory retirement ed. Some other persons involved in agitation awarded lesser punishment. It was held that Court ordinarily would not interfere with order on quantum of punishment once Court

R. 15]


397

comes to a conclusion that there has been no infirmity with procedure. Union of India v. P. Chandra Mouli, 2001(3) SLT 205 34. Punishment, Consideration of by Court — (i) If the order of the Government can be ed on any finding as to substantial misdemeanour for which the punishment imposed can be lawfully imposed, it is not for the court to consider whether that ground alone would have weighed with the authority dismissing the public servant. State of Orissa v. Bidyabhusham, AIR 1963 SC 779: 1963 Sup(1) SCR 648: 1963(1) LLJ 239; State of U.P. v. Om Prakash Gupta, AIR 1970 SC 679: 1969(3) SCC 775: 1969 SLR 890: 1970 Lab IC 568: 1970(1) SCWR 139; Murlidhar Mishra v. District Judge, Cuttack, 1977 SLJ 344. (ii) The court is not concerned to decide whether the punishment imposed, provided it is justified by rules, is appropriate by having regard to the misdemeanour established. Union of India v. Sardar Bahadur, 1971(II) SCWR 712: 1972 SLR 355. (iii) High Court cannot interfere with the order on the ground of severity of the punishment in the absence of any statutory provisions barring cumulative punishment. Sant Kumar Banerjee v. Collector, 1970 Lab IC 1641; Natarajan v. Divisional Superintendent, Southern Railway, 1976(1) SLR 669: 1976 Lab IC 363. (iv) Court has no business to interfere with punishment when justifiably awarded. The quantum of punishment is also not a matter for the Court to look into. But the position cannot be lost sight of that if without justification punishment be imposed, security of service might be affected and ultimately the purpose of giving protection to public officers would be lost. Purnachandra Dash v. State of Orissa, 1981(2) SLR 769. (v) If the decision on the question of penalty is not right, just, fair and reasonable and it is vitiated due to arbitrary exercise of the penal powers, the same requires to be quashed and set aside. Bhim Singh Sardar Singh v. District Supdt. of Police, 1982(2) SLR 629 Guj. (vi) Quantum of punishment is the prerogative of the Disciplinary Authority. No one else should be allowed to influence it. Advice of the Central Vigilance Commission should not extent to the punishment to be meted out. N. Sunderamurthy v. Lt. Governor, Pondicherry, 1990(6) SLR 212, 223, 224 para 4 (CAT Mad). 35. Order of Punishment, Whether should be in Standardised Form — The form has been evolved in istrative instructions for the guidance of punishing authorities and in not a part of the rules. Failure to use a prescribed form in ing an order by itself does not nullify the order. Director of Postal Services v. Daya Nand, 1972 SLR 325. Order had been issued in standard form by filling up the blanks. Order without application of mind in a mechanical manner cannot be maintained. Order of punishment should be a speaking order and if the punishing authority does not appear to apply its mind to the material on record then it is vitiated. Union of India v. Raghubir Saran, 1982 Lab IC 1894. 36. Removal or Dismissal by an Authority Subordinate to that by which Civil Servant was Appointed if Void and Inoperative — Mysore State Road

398


[R. 15

Transport Corporation v. Mirza Khasim Ali Beg, AIR 1977 SC 747: 1977(2) SCC 457: 1977(1) LLJ 262: 1977 Lab IC 272: 1977(1) SLR 237; Babaji Charan Rout v. State of Orissa, 1982(1) SLJ 496: 1982 Lab IC 603; Dinanath v. District Medical Officer, 1982(2) SLJ 691. The penalty of removal from service cannot be imposed without recourse to disciplinary proceedings. An employee cannot be removed or dismissed by an authority other than by which he was appointed unless the appointing authority has made prior delegation of such authority to such other person or authority in writing. Uttar Pradesh Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1999(1) CLT 134(SC): 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124 . The power of appointment carries with it the power to dismiss, discharge, remove an employee or to terminate his services in accordance with the conditions of employment. Post Graduate Institute of Medical Education v. Sham Lal, 1974 SLJ 365: 1974 (2) SLR 814; Union of India v. Gurbaksh Singh, AIR 1975 SC 641: 1975(3) SCR 444: 1975(3) SCC 638: 1975 SLJ 554: 1975(1) SCJ 351. In Moti Ram Deka v. General Manager, N.E.F. Railway, AIR 1964 SC 600: 1964(5) SCR 638, which is the leading case on the meaning of “dismissal” and “removal”, it was held that rules cannot tres upon or curtail the rights guaranteed by Article 311 of the Constitution. Thus an authority subordinate to the appointing authority cannot be authorised to dismiss a civil servant. Balak Das v. Astt. Security Officer, AIR 1960 MP 183. For the penalties in relation to Rule 11 of the CCS (CCA) Rules are as mentioned in items (i) to (ix), the authority competent to impose the penalty is the Head of the Office. As a result, the Head of Office, namely, the Assistant Manager is the competent authority to appoint. Once he is the competent authority to appoint, he is equally, the competent authority to impose the penalty. Himachal Road Transport Corporation v. Kewal Krishan, AIR 1997 SC 2667: 1997 (9) SCC 39: 1997 (2) SLR 580: 1997 (76) FLR 233: 1997 (2) SCJ 172: 1997 Lab IC 2652: 1998 (1) LLJ 1058: 1998 (1) SLJ 44: 1998 (3) LLN 24. As regards competent authority to issue charge sheet, see Government of Tamil Nadu v. S. Vel Raj, AIR 1997 SC 1900: 1997 (2) SCC 708: 1997 (1) JT 349: 1996(6) SLR 358: 1997(2) LLN 26: 1997(2) SLJ 32: 1997(3) LLJ 1; Inspector General of Police v. Thavasiappan, AIR 1996 SC 1318: 1996(2) SCC 145: 1996 (6) JT 450: 1996 SCC (L&S) 433: 1996 (32) ATC 663: 1996 (2) SLR 470: 1996 (1) UJ 424: 1996 (74) FLR 2510: 1996 (2) LLN 515: 1997 (2) LLJ 191. Where the authorities which had appointed a civil servant to service or to the grade or to a particular post are different for the purpose of the rule and therefore, for Article 311 of the Constitution, the appointing authority would be the highest of the three authorities. K.K. Mittal v. Union of India, 1974(2) SLR 602; Dharma Dev Mehta v. Union of India, AIR 1980 SC 557: 1980(2) SCR 554: 1980(2) SCC 205: 1980 Lab IC 383: 1980(1) SLR 414. However a person entrusted with the charge of the office is entitled to exercise all executive powers, perform duties and discharge functions attached to those offices


R. 16]

399

including the power to impose penalty. Gopalji Khanna v. Allahabad Bank, AIR 1996 SC 1729: 1996(2) SCR 1068: 1996(3) SCC 538: 1996(2) SLR 315: 1996(1) BC 574: 1996 SCC(L&S) 766: 1996(1) LLN 806: 1996(2) LLJ 121. 37. Second Opportunity Rule not Applicable Even to Proceedings Initiated Prior to 1977 — The second opportunity rule in Article 311(2) stood prior to Constitution Forty Second Amendment Act, 1976, which came into force w.e.f. 03-01-1977. Consequently, Rule 15(4) was amended w.e.f. 02-09-1978. These amendments clearly imply that in respect pending disciplinary proceedings also the intention was to do away with the second opportunity rule. Issac Joseph v. Senior Supdt. of Post Offices, Ernakulam, 1982(2) SLR 269: 1983 Lab IC 145. Where in a case Enquiry Officer holds a charge not proved and the disciplinary authority holding it proved imposed penalty, claim put forth by the applicant that a show cause should have been given before imposing penalty. It was held that no such second cause is requirement of Rule 15(3). N. Mangayarkarasi v. Secretary to Government (Welfare), Podicherry, 1988(1) SLJ 395 (CAT Mad). The disciplinary authority has no jurisdiction to drop proceedings before arriving at final stage of imposing of penalty. Bhagat Singh v. Union of India, 1994(7) SLR 743 (CAT Cal).

PROCEDURE FOR IMPOSING MINOR PENALTIES R. 16

16. Procedure for provisions of sub-rule Government servant any of Rule 11 shall be made

imposing minor penalties — (1) Subject to the (3) of Rule 15, no order imposing on a of the penalties specified in clauses (i) to (iv) except after—

(a)

informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;

(b)

holding an inquiry in the manner laid down in sub-rules (3) to (23) of Rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;

(c)

taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;

400


[R. 16

(d)

recording a finding on each imputation of misconduct or misbehaviour; and

(e)

consulting the Commission where such consultation is necessary.

(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty. (2) The record of the proceedings in such cases shall include— (i)

a copy of the intimation to the Government servant of the proposal to take action against him;

(ii)

a copy of the statement of imputations of misconduct or misbehaviour delivered to him;

(iii)

his representation, if any;

(iv)

the evidence produced during the enquiry;

(v)

the advice of the Commission, if any;

(vi)

the findings on each imputation of misconduct or misbehaviour; and

(vii)

the orders on the case together with the reasons therefore.

COMMENTARY SYNOPSIS Sub-rule (1) 1.

Requirements of the rule. ............................................................................................... 401

2.

Charge-sheet under Rule 14 - On receipt of reply, minor penalty can be imposed without following procedure under rule 14 .................................................................... 401

3.

Penalty of censure .......................................................................................................... 402

4.

Delinquent only entitled to opportunity to make a representation .................................. 402


R. 16]

5.

Effective opportunity of meeting allegations be given by information allegations against him ..................................................................................................................... 402

6.

Application of principle of natural justice ...................................................................... 402

7.

Inviting comments on representation made by delinquent officer .................................. 403

8.

Civil servant”s right of access to preliminary enquiry report in proceedings other than those involving major penalties ...................................................................................... 403

9.

Enhancement of punishment, opportunity to defend be given........................................ 403

401

10. Mention of proposed punishment in show cause notice ................................................. 404 11. Withholding of promotion, procedure be followed ........................................................ 404 12. Recovery of loss caused by negligence from pay ........................................................... 404

Sub-rule (1)(b) 13. Disciplinary authority to give reasoned finding whether an enquiry is or is not necessary ........................................................................................................................ 404 14. If disciplinary authority decides to hold enquiry ............................................................ 405

Sub-rule (1)(d) 15. Order should be speaking order ...................................................................................... 405 16. Order should contain reasons for imposing penalty ....................................................... 406

Sub-rule 16(1-A) 17. issions of delinquent officer during enquiry ........................................................... 406 18. Penalty under Rule 16(1-A) only after following prescribed procedure . ....................... 406

Sub-rule (1)(a) 1. Requirements of the Rule — (i) Rule 16 provides for the procedure where minor penalty is to be imposed. The rule requires the Government to inform the official of the proposal to take action against him and give him a reasonable opportunity of making such representation as he may wish to make against the proposal. Holding of enquiry is not mandatory but is in the discretion of the disciplinary authority who may if necessary hold one. I.D. Gupta v. Delhi istration, 1973(2) SLR 1. See also Kul Bhusan Madan v. Union of India, 1994(7) SLR 55 (CAT, New Delhi). (ii) The only requirement is that officer concerned should be given an adequate opportunity of making representation that he may desire to make. There is no provision for examination of witnesses, cross-examination of witnesses and furnishing a copy of report. The punishment can therefore be imposed after the charge-sheet had been served on the officer and he had made his representation, if the disciplinary authority considers that holding an enquiry is not necessary. Shadi Lal Gupta v. State of Punjab, 1973(1) SCWR 329: AIR 1973 SC 1124: 1973(3) SCR 637: 1973(1) SCC 680: 1973 SLJ 478. 2. Charge-sheet under Rule 14: On receipt of Reply, Minor Penalty can be Imposed without Following Procedure of Rule 14 — If in the first instance a memorandum is given under Rule 14 and on receipt of reply by the delinquent the

402


[R. 16

authority is of the view that only a minor penalty was called for, the authority can impose the minor penalty without going through the whole procedure of elaborate enquiry under Rule 14. I.D. Gupta v. Delhi istration, 1973(2) SLR 1. See also K.P. Agarwal v. Union of India, 1994(7) SLR 713 (CAT Jaipur). Even in case of a minor penalty an opportunity has to be given to delinquent employee to have his say or to file his explanation with respect to charges against him. Moreover, if charges are factual and if they are denied by delinquent employee, an enquiry is called for. This is the minimum requirement of the principle of natural justice which cannot be dispensed with. O.K. Bhardwaj v. Union of India, 2001(9) SCC 180. 3. Penalty of censure— Penalty of censure cannot be equated with a warning but is one of the minor penalties. State of Madhya Pradesh v. I.A. Qureshi, 1998(9) SCC 261. 4. Delinquent Only Entitled to Opportunity to Make a Representation — It is true that the requirement of a reasonable opportunity of making representation against the proposed imposition of a minor penalty includes an opportunity both against the alleged guilt and also the quantum of punishment and that it has to be real. This, does not, however, mean that an elaborate enquiry is to be held. All that is required is that the delinquent officer must know the case which he has to meet including the details of the material or evidence on which the case against him is based. It is only an opportunity to make a representation and not that the delinquent officer is entitled to get witnesses summoned, cross-examine them and then except a finding. B.D.Gupta v. State of Haryana, 1970 Lab IC 170; Kalyan Singh v. State of Punjab, 1967 SLR 129. 5. Effective Opportunity of Meeting Allegations be Given by Informing Allegations Against Him — No doubt, it is not necessary to hold a departmental enquiry for imposing on a Government servant the punishment of withholding an increment. But he is clearly entitled to an effective opportunity of making the allegations on which it is proposed to withhold his increment. Merely giving a notice to the Government servant saying he is guilty of certain lapse or misconduct and asking him to show cause against the punishment of withholding increments is not sufficient. He must be informed of the allegations against him and the material on which they are based. Lal Audhraj Singh v. State of M.P., 1968 SLR 88: AIR 1967 MP 284. 6. Application of Principles of Natural Justice — Petitioner was asked to show cause why disciplinary action be not taken against him for being duly intoxicated near the Bus Station at midnight and behaving in a disorderly manner under the influence of liquor. He submitted his explanation denying the charges and how he was manhandled by the Police Officer. The appointing authority without any further enquiry into the charges barred his increments for three years with cumulative effect. Government rejected his appeal. Held, the orders cast a stigma on his character. In the circumstances of the facts of the case, the impugned orders are in violation of principles of natural justice and cannot be sustained. C. Ramankutty Warrier v. State of Kerala, 1983(1) SLJ 1. A charge-sheet was filed for misconduct and negligence. Copies of statements relied upon by the Department were not supplied. No opportunity was given to cross-

R. 16]


403

examine the witnesses. Punishment of withholding of increments for two years was awarded. It was held that, though regular inquiry under Rule 14(3) to 14(23) CCS (CC&A) Rules are not mandatory for minor penalty, yet a finding of guilt can be arrived at only after an inquiry. Finding was set aside. Joseph Thomas v. Chairman, Posts & Telegraphs, New Delhi, 1989(5) SLR 362 Delhi. Where a minor punishment is imposed, the procedure for holding an enquiry need not be followed unless otherwise desired by the disciplinary authority. But surely it does not mean that the enquiry is wholly barred or that it is entirely subject to the pleasure of the disciplinary authority. … ….The duty to give satisfactory reasons for coming to a decision is a duty of importance which cannot be lawfully disregarded. G. Sundaram v. General Manager, Disciplinary Authority, Canara Bank, 1999(1) SLR 92 Karnataka. If the disciplinary authority gives reasons for disagreeing with the findings of enquiring officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. Held that there is no force in the submission of the learned counsel appearing for the delinquent government servant that before the disciplinary authority proceeds to award punishment, the delinquent government servant should have been afforded a further opportunity of hearing. Held further that charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiring officer having recorded his findings and thereafter the disciplinary authority having disagreed with the findings by recording the reasons therefore and ultimately awarding minor punishment of stoppage of one increment without cumulative effect, there is no procedural irregularity therein nor can it be said that there has been any violation of principle of natural justice. State of Rajasthan v. M.C. Saxena, 1998(3) SCC 385: AIR 1998 SC 1150: 1998(1) SLR 787: 1998(1) LLJ 1244: 1998(79) FLR 140: 1998(3) SLJ 10: 1998 Lab IC 1038: 1998(93) FJR 582: 2000(1) LLN 35. 7. Inviting Comments on Representation made by Delinquent Officer — When an explanation is received its consideration is a matter solely for the authority competent to take action. He should not allow his decision to be influenced by any other person by inviting comments on the explanation. M.L.Gera v. Chief Engineer, 1973(1) SLR 1076: AIR 1973 Punjab 287. 8. Civil Servant”s Right of Access to Preliminary Enquiry Report in Proceedings Other Than those Involving Major Penalties — A civil servant in disciplinary proceedings other than those involving the major penalties of dismissal, removal or reduction in rank is not entitled to be supplied with the copy of the report or the substance of the adverse findings and the material on which they are based to which reference was made by the punishing authority to ascertain the facts in order to decide whether it was a fit case for taking any action and, if so, what action against the officer. Malvinder Jit Singh v. State of Punjab, 1970 SLR 660 (FB). 9. Enhancement of Punishment, Opportunity to Defend be Given — Petitioner was awarded of reduction in pay by three stages for three years. After sometime, a clarification was issued that the reduction of pay will have the effect to

404


[R. 16

postpone the future increments. Held, since another punishment in an enhanced form was imposed, the petitioner was entitled to the protection under Article 311(2) of the Constitution and since he has been denied of an opportunity to defend himself against the punishment, the order was quashed. G.S. George v. Government of Andhra Pradesh, 1968 SLR 603: AIR 1968 AP 153. 10. Mention of Proposed Punishment in Show Cause Notice — Rule covers several kinds of minor punishments and it was improper on the part of punishing authority to have the case decided before the receipt of explanation as to what punishment was going to be imposed. M.L Gera v. Chief Engineer, 1973(1) SLR 1076: AIR 1973 Punjab 287. 11. Withholding of Promotion, Procedure be Followed — A punishment by way of withholding of promotion shall not be imposed unless the officer has been given adequate opportunity of showing cause against the action proposed to be taken. In such disciplinary proceedings the Government servant has a right to insist upon the procedure being strictly followed. High Court of Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704: 1963(1) SCR 437. 12. Recovery of Loss Caused by Negligence from Pay — In view of the losses sustained by the Government due to petitioner”s negligence, his two months salary was credited to Government revenue to make good a portion of the loss due to thefts. Held, it is punishment which could not be inflicted in disregard of the protection afforded by Article 311(2). Babulal Mekulal v. Principle Govt. Engineering College, Jabalpur, AIR 1960 MP 294. However recovery as per covenant in service contract can be made. State of Kerala v. M.C. Joseph, 1975 SLJ 605. See also Kul Bhusan Madan v. Union of India, 1994(7) SLR 55 (CAT New Delhi). Recovery of loss from delinquent after disciplinary proceeding and dismissal from service. Appeal dismissed by Appellate Authority by non-speaking order. Order of Appellate Authority set aside and remanded for reconsideration. S. Ramanathan v. Chief Judicial Magistrate, 2001(5) JT 494: 2001(4) SLT 473. As punishment for charges of misappropriation and negligence, disciplinary authority directed the stoppage of increments for two years without cumulative effect and suspension pending enquiry was directed to be treated as service without pay and the loss caused was also ordered to be recovered from the employee. Held that the Tribunal had no jurisdiction to interfere with the punishment imposed by the disciplinary authority as order for recovery of loss caused on of employee”s negligence and misconduct which was permissible under Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. Commissioner of Rural Development v. A.S. Jagannathan, AIR 1999 SC 3368: 1999(2) SCC 313: 1999(1) LLJ 1083: 1999 Lab IC 2617.

Sub-rule (1)(b) 13. Disciplinary Authority to Give Reasoned Finding Whether an Enquiry is or is not Necessary — There can be no manner of doubt that where a minor punishment is sought to be imposed, the procedure of holding an enquiry need not be followed, unless otherwise desired by the disciplinary authority. But surely it does not

R. 16]


405

mean that the enquiry is barred or that it is entirely subject to the pleasure of the disciplinary authority. The clause speaks of the opinion that such enquiry is necessary implying that the disciplinary authority must apply its mind to the facts and circumstances of the case as disclosed in the representation of the employee and other available material and give a reasoned finding whether an enquiry is or is not necessary. In the absence of such finding, an order imposing the penalty would be invalid and of no legal consequences unless, of course, it can show that the omission has not resulted in any material prejudice to the employee. For, cases are conceivable where without the requisite opinion being there, clause (b) has been substantially complied with. Mansa Ram v. General Manager, Telecommunications, 1980 SLJ 382: 1980(3) SLR 520. Since reasons are the links between the materials on which certain conclusions are based and the actual conclusions and they disclose how the minds is applied to the subject matter and it excludes the chances to reach arbitrary, whimsical or capricious decision. It also aids the appellate or revisional authority or the supervisory jurisdiction of this Court under Article 226 of the Constitution to see whether the authority concerned acted fairly and justly to meet out justice to the aggrieved person. G. Sundaram v. General Manager, Disciplinary Authority, Canara Bank, 1999(1) SLR 92 Karnataka. No doubt, Rule 16(1)(b) confers a discretion on the disciplinary authority to hold an inquiry. But where the Government servant himself insists on inquiry to establish his innocence, rejection of his request is not justified. C.G. Jayadev v. Rajagopalan, 1988(8) ATC 17 (CAT Madras). The Central istrative Tribunal, Banglore in Murugesan v. Collector of Customs, 1991(15) ATC 931 has held, that if the employee makes a request for departmental enquiry, the same should not be unreasonably rejected. Where delinquent makes a written representation for oral inquiry and opportunity to cross-examine, the request be summarily rejected. D.J.J. Bethel Raj v. Sub-Divisional Officer, Telegraphs, 1989(1) SLR 639 (CAT Madras). 14. If Disciplinary Authority Decides to Hold Inquiry — If the disciplinary authority is of opinion that enquiry under sub-rules (3) to (23) of Rule is necessary, the procedure laid down therein has to be allowed while initiating the proceedings under Rule 14 for major penalty. Even if a minor penalty is ultimately imposed, the officer can complain about violation of the procedure laid down under Rule 14. Piyar Mohammad Talukdar v. Senior Superintendent of Post Offices, 1974(1) SLR 162 Gau.

Sub-rule (1)(d) 15. Order should be a Speaking Order — The order should be a speaking order so that the employee concerned may know the process of reasoning that led to the penal action. M.L. Gera v. Chief Engineer, 1973(1) SLR 1076: AIR 1973 Punjab 287; Harchand Singh v. State of Punjab, 1980(3) SLR 711. It is well settled that in departmental proceedings, the order of punishment is an order in the nature of quasi judicial proceedings and it has to be a speaking order. If certain explanation is

406


[R. 17

furnished by the delinquent officer in reply, the same has to be met with by ing a speaking order. Deep Chand Sharma v. State of Haryana, 1981(3) SLR 188. 16. Order should Contain Reasons for Imposing Penalty — A penalty can be imposed upon of the services only if good and sufficient reasons are shown. The existence of good and sufficient reasons can only be found out from the reading of the orders which ittedly do not exist in this case. Order set aside. Ram Das Chaudhary v. State of Punjab, 1968 SLR 792; Dr. B.K. Talwar v. State of Haryana, 1970 SLR 732: 1970 Cur LJ 579; State of Punjab v. Dr. Ram Kishan Chopra, 1977(2) SLR 809.

Sub-rule 16(1-A) 17. ission of Delinquent Officer during Enquiry — If the issions are to be taken to be correct, then the ission should be taken as a whole and not only the parts thereof which are favourable to the prosecution. Satya Prakash Varshney v. Union of India, 1980(3) SLR 64. 18. Penalty under Rule 16(1-A) only After Following Prescribed Procedure — Any of the penalties mentioned in Rule 16(1-A) can be imposed only after following the procedure laid down in sub-rules (3) to (23) of Rule 14. Satya Prakash Varshney v. Union of India, 1980(3) SLR 64. See also K. Gandhi v. Union of India, 1994(3) SLR 628 (CAT Madras). R. 17

COMMUNICATION OF ORDERS

17.

¹[Communication of Orders — Orders made by the disciplinary authority shall be communicated to the Government servant who shall also be supplied with a copy of its findings on each article of charge, or where the disciplinary authority is not the inquiring authority, a statement of the findings of the disciplinary authority together with brief reasons for its disagreement, if any, with the findings of the inquiry authority and also a copy of the advice, if any, given by the Commission, and where the disciplinary authority has not accepted the advice of the Commission, a brief statement of the reasons for such nonacceptance.]


“Communicated”, meaning of . ...................................................................................... 407

2.

Detailed order not supplied to delinquent officer but only its operational portion ........ 407

3.

Necessity of communication .......................................................................................... 407

4.

Order when becomes effective ....................................................................................... 407

R. 17]


407

1. “Communicated”, Meaning of — Once an order other than that of dismissal is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it. State of Punjab v. Khemi Ram, 1969(II) SCWR 718: AIR 1970 SC 214: 1970(2) SCR 657: 1969(3) SCC 28: 1970 Lab IC 271: 1970(21) FLR 138: 1971(1) SCJ 263: 1969 SLR 833; State of Punjab v. Balbir Singh, 1976(1) SLR 36. 2. Detailed Order not Supplied to Delinquent Officer but Only its Operational Portion — The disciplinary authority ed a reasoned order on the file but did not communicate that reasoned order to the petitioner. Instead thereof a cryptic order was issued to him which did not comply with the requirements quasi judicial order. The order was quashed and the disciplinary authority was directed to another order and communicate it to the petitioner. H.K. Khanna v. Union of India, 1971(1) SLR 618. A Division Bench in Dayawanti v. State of Punjab, 1982 Lab IC 496: 1982(1) SLR 244 overruled the decision in H.K. Khanna v. Union of India, 1971(1) SLR 618 and held that no principle of natural justice requires the Govt. to necessarily supply the detailed order to the delinquent officer nor the non-supply of the detailed order can render the order void or invalid. Rule 17 was not considered in these decisions. In enquiries conducted under the CCS (CCA) Rules, 1965, the provisions contained in Rule 17 must be followed. 3. Necessity of communication— Where the services are terminated, the status of the delinquent, as a Government servant, comes to an end and nothing further remains to be done in the matter. But if the order is ed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated. Union of India v. Dinanath Shantaram Karekar, 1998(7) SCC 569: AIR 1998 SC 2722: 1999(1) SLJ 180: 1998(80) FLR 446: 1998(2) LLJ 748: 1998 Lab IC 3021: 1998(4) LLN 14: 1999(94) FJR 10. 4. Order when Becomes Effective — Order of termination of employment does not become effective until it is intimated to the employee or is otherwise published. State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313: 1966(2) LLJ 188: 1966(II) SCWR 710: 1966(2) SCJ 777; Raj Kumar v. Union of India, 1968(II) SCWR 914: 1968 DLT 551: 1968 SLR 745; State of Punjab v. Balbir Singh, 1976(2) SCR 115: 1976(3) SCC 242: AIR 1977 SC 629: 1976(1) SLR 36: 1977 Lab IC 281: 1976(2) LLJ 4: 1976 SLJ 278. A distinction has been made regarding the points of time when an order of dismissal and an order of reversion or suspension becomes effective. In the case of an order of reversion or suspension, when it goes out of the control of the authority concerned, that is to say, when it is despatched to the Government servant either by post or by messenger. This principle is not, however, applicable in the case of an order of dismissal. When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982(2) SLJ 368: 1982 SLR 724: 1982 Lab IC 1361.

408


[R. 18

Mere ing of the order of dismissal would not make it effective unless it was published and communicated to the concerned officer. State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313: (1966) 2 SCJ 777: 1966(2) LLJ 188; Rama Kant Banik v. District School Board, AIR 1969 Calcutta 397; Bansidhar Panigrahi v. State of Orissa, 1975 SLJ 150: 1975 (2) SLR 725: 1975 Lab IC 932. When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him. Umashankar Chatterjee v. Union of India, 1982 (2) SLJ 368: 1982 (2) SLR 724. Where order of termination is ed by the appointing authority, its communication by any other authority would not render it bad in law. Union of India v. Sumitra Devi, 2000 (2) SLR 403 SC.

COMMON PROCEEDINGS R. 18

18.

Common Proceedings — (1) Where two or more Government servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. Note — If the authorities competent to impose the penalty of dismissal on such Government servant are different, an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of others. (2) Subject to the provisions of sub-rule (4) of Rule 12, any such order shall specify— (i)

the authority which may function as the disciplinary authority for the purpose of such common proceeding;

(ii)

the penalties specified in Rule 11 which such disciplinary authority shall be competent to impose;

(iii)

whether the procedure laid down in Rule 14 and Rule 15 or Rule 16 shall be followed in the proceeding.

R. 18]


409


Common proceedings without sanction . ....................................................................... 409

2.

Necessity of common proceedings ................................................................................. 409

3.

Order for common proceedings not ed by highest of the authorities ...................... 409

4.

Appointment of disciplinary authority ........................................................................... 410

5.

t enquiry - Objection to ........................................................................................... 410

6.

Information for common proceeding but enquiry conducted separately ....................... 410

1. Common Proceedings Without Sanction — t and/or common trial cannot be held without sanctioned referred to in the rule. Tripura Charan Chatterjee v. State of West Bengal, 1979(1) SLR 878. See also K.B. Narayanachari v. Vice President, Council of Scientific and Industrial Research, 1993(8) SLR 634 (CAT Hyderabad). 2. Necessity of common proceedings — It is always necessary and salutary that common enquiry should be conducted against all the delinquent officers to avoid multiplicity of proceedings, needless delay from conducting the same and overlapping abduction of evidence or omission thereof and conflict of decision in that behalf. Balbir Chand v. Food Corporation of India Ltd., AIR 1997 SC 2229: 1996 Supp (10) SCR 156: 1997(3) SCC 371: 1997(1) SLJ 156: 1997(2) LLJ 879: 1997(77) FLR 267: 1997(3) LLN 82: 1998(79) FLR 494: 1997(1) SLR 756. In the aforesaid case it has been further held that enquiry should normally be not split even on the request of the delinquents. It was observed “If one charged officer cites another charged officer as a witness, in proof of his defence, the enquiry need not per se be split up even when the charged officers would like to claim an independent enquiry in the behalf. If that procedure is adopted, normally all the delinquents would be prone to seek split up of proceedings in their/his bid to delay the proceedings, and to see that there is conflict of decisions taken at different levels. Obviously, disciplinary enquiry should not be equated as a prosecution for an offence in a criminal Court where the delinquents are arrayed as co-accused. In disciplinary proceedings, the concept of co-accused does not arise. Therefore, each of the delinquents would be entitled to summon the other person and examine on his behalf as a defence witness in enquiry or summon to cross-examine any other delinquent officer if he finds him to be hostile and have his version placed on record for consideration by the disciplinary authority. Under these circumstances, the need to split up the cases is obviously redundant, time consuming and dilatory.” 3. Order for Common Proceedings not ed by Highest of the Authorities — Police Sub-Inspector and Head Constable were charged for misconduct. Disciplinary proceedings followed. There was der of inquiries and the two police officers were dismissed from the service. The Police Sub-Inspector had been appointed by I.G.P. and the Head Constable by Lt. Governor. Order directing that disciplinary action against both the police officers be carried out in a common proceeding was ed by I.G.P.,

410


[R. 19

and not by Lt. Governor. Enquiry Officer has acted without jurisdiction when he took up common proceedings. Entire proceeding is vitiated and is therefore liable to be quashed. Ashok Y. Naik v. of Goa, 1979 SLJ 84: 1978(2) SLR 679. 4. Appointment of Disciplinary Authority — Where appointing authorities are different of civil servants about whom a t enquiry is ordered, the Government is to specify as to who shall be the disciplinary authority for the common purposes of making the t enquiry. Krishan Lal Godara v. State of Rajasthan, 1969 SLR 666. 5. t Enquiry: Objection to — If a charged officer does not want a t trial along with other persons he should take that objection before the Enquiry Officer/Tribunal. A t trial of more than one charged officer cannot be held to be bad unless it is shown that some prejudice was caused to the charged person by virtue of the t trial. R. Narasimha Reddy v. State of A.P., 1975(1) SLR 315. See also K.B. Narayanachari v. Vice President, Council of Scientific and Industrial Research, 1993(8) SLR 634 (CAT Hyderabad). Where there is inherent lack of jurisdiction to hold t enquiry, no amount of acquiescence or consent of parties can confer jurisdiction. Tripura Charan Chatterjee v. State of West Bengal, 1979(12) SLR 878. 6. Information for Common Proceeding but Enquiry Conducted Separately — Despite the intimation given to applicant for conducting common proceeding enquiry done separately, it was held that purpose behind it was to give better opportunity and there was no violation of natural justice. B.C. Rangarajan v. General Manager, Ordinance Factory, 1988(1) SLJ 521 (CAT) (SN) (Mad).

SPECIAL PROCEDURE IN CERTAIN CASES R. 19

19.

Special procedure in certain cases — Notwithstanding anything contained in Rule 14 to Rule 18 — (i)

where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or

(ii)

where the disciplinary enquiry is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or

(iii)

where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary


R. 19]

411

authority may consider the circumstances of the case and make such orders thereon as it deems fit: 1

[Provided that the Govt. servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i): Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule].


Penalty without inquiry or show cause in certain cases ................................................. 412

Clause (i) 2.

Conviction on criminal charge - Meaning of ................................................................. 413

3.

Pendency of appeal against conviction........................................................................... 414

4.

Conviction on a criminal charge - Imposing of penalty ................................................. 414

5.

Application of ............................................................................................................... 414

6.

Predetermination of penalty ........................................................................................... 417

7.

Delay in initiating proceedings....................................................................................... 417

8.

Reference to conduct leading to conviction.................................................................... 417

9.

Conviction for conduct not in course of employment .................................................... 417

10. Probation of Offenders Act - Effect of benefit under Section 12 ................................... 418 11. Probation of Offenders Act - Objects of Sections 4 & 12 .............................................. 419 12. Power of appellate criminal court................................................................................... 420 13. Suspension of sentence................................................................................................... 420 14. Set aside of conviction ................................................................................................... 420 15. Effect of acquittal ........................................................................................................... 421 16. Back wages .................................................................................................................... 422 17. Fresh departmental enquiry - Whether necessary ........................................................... 422 18. Natural Justice - Violation of ......................................................................................... 422 19. Combined effect of Rule 10(2)(b) and Rule 19(i) .......................................................... 423

Clause (ii) 20. Dispensing with enquiry................................................................................................. 423 1

Proviso substituted by S.O.No. 830 dated 28-03-1987 vide Notification No. 11012/13/86-Estt. (A), dated 11-03-1987.

412


[R. 19

21. Not reasonably practicable to hold an inquiry in the manner provided in these rules Meaning of .................................................................................................................... 424 22. Ambit of consideration by the disciplinary authority - Associating of employee........... 424 23. Whether the conclusion of disciplinary authority open to challenge .............................. 425 24. Whether reasons are to be communicated to the employee ............................................ 427 25. Whether rule authorises to altogether dispense with an enquiry..................................... 427 26. Natural justice and dispensation of enquiry.................................................................... 428

Clause (iii) 27. Interest of of security of State not to suffer on unsubstantial or hyper technical grounds .......................................................................................................................... 428 28. President/Governor can dispense with enquiry if in the interest of security of State - It is not expedient to hold it ............................................................................................... 428 29. Satisfaction of President or Governor need not be personal .......................................... 428 30. Satisfaction of the President or Governor is subjective .................................................. 429 31. Termination of service in interest of security of State under Article 310 - Order to recite President”s satisfaction ......................................................................................... 429 32. Decision of Governor or President that in the interest of the security of State, it is not expedient to hold an inquiry - Judicial review of .......................................................... 429 33. Decision of review petition before the Supreme Court cannot stand in way of reinstatement .................................................................................................................. 430 34. Non-consultation with Public Service Commission ....................................................... 430

1. Penalty without Inquiry or Show Cause in Certain Cases — President has made the present Rules under Article 309 of the Constitution and has provided that no order imposing any of the penalties specified in clause (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in accordance with Rules 14 and 15 or in the manner provided by the Public Servants (Inquiries) Act, 1850. Procedure for imposing minor penalties specified in clauses (i) to (iv) of Rule 11 has been provided in Rule 16 Rule 19 provides that Rules 14 to 18 shall not apply in the circumstances and to the cases mentioned in clauses (i), (ii) and (iii), Rule 19 has therefore, been made to give effect to the Second Proviso to Article 311(2). Article 311 of the Constitution reads:—. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State — (1) No person who is a member a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.


R. 19]

413

1

[(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges 2[* * *]:. 3

[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:. Provided further that this clause shall not apply—. (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or. (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or. (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]. Case law on clauses (i), (ii) and (iii) of Rule 19 is given in the notes which follow:

Clause (i) 2. Conviction on Criminal Charge: Meaning of — Conviction on a criminal charge includes conviction under any law which provides for punishment for an offence, whether by fine or imprisonment and that no distinction is made by this clause between crimes involving moral turpitude or other crimes. Sunil Kumar Ghosh v. State of West Bengal, AIR 1970 Cal 384: 73 Cal WN 627: 1970(1) LLJ 588: 1970 Cri LJ 1225: 1970 Lab IC 1243. [Case Law discussed]. It has been held, with reference to Rule 19, that if the employee is acquitted in the criminal case on appeal, the disciplinary authority cannot, after the acquittal, reopen the inquiry. P.P. Kuttuppan v. Senior Superintendent of RMS, 1990(3) SLR 561 (CAT Ernakulam). See also D.V. Varma v. Superintending Engineer, Hyderabad, Central Circle, WD, 1994(2) SLR 479 (CAT Hyderabad). 1

2

3

Substituted by the Constitution (Fifteenth Amendment) Act, 1963, Section 10, for clause (2) and (3). Certain words omitted by the Constitution (Forty second Amedment) Act, 1976, Section 44, w.e.f. 03-01-1977. Subtituted by Section 44, ibid., for certain words (w.e.f. 03-01-1977)

414


[R. 19

3. Pendency of appeal againt conviction — Appeal against conviction, still pending. Held that the order of dismissal could be ed on the conduct of government servant leading to his conviction on a criminal charge even though an appeal against the conviction and sentence is pending in a court but if government servant acquitted in appeal filed by him, he can move the authorities for review of the order of dismissal as per law. Union of India v. V. K. Bhaskar, 1997(11) SCC 383: 1998(9) JT 301: 2000(84) FLR 879, See also State of West Bengal v. Hari Ramalu, 2000(4) SLR 91 Cal; N. Panduranga Rao v. Central Bank of India, Hydrabad, 1999 (8) SLR 122 AP. 4. Conviction on a Criminal Charge: Imposing of Penalty — Article 311(2) of the Constitution lays down that no person who holds a civil post shall be dismissed or removed or reduced in rank except after inquiry. Proviso (a) to Article 311(2), however, completely dispenses with the departmental enquiry when an employee is convicted on a criminal charge. The founders of the Constitution thought that where once a delinquent employee has been convicted of a criminal offence, that should be treated as a sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in Article 311(2), namely, dismissal, removal or reduction in rank. Proviso (a) to Article 311(2) is merely en enabling provisions and it does not en or confer a mandatory duty on the disciplinary authority to an order of dismissal, removal or reduction in rank the moment an employee is convicted. This matter is left completely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry contemplated by this provision as also by the Department Rules is dispensed with. In these circumstances, Rule 14(i) of the Railway Servants (Discipline and Appeal) Rules, 1968, [which is similar to Rule 19(i) of Central Civil Services (Classification, Control & Appeal) Rules, 1965] only incorporated the principles enshrined in proviso (a) to Article 311(2) of the Constitution. 5. Application of — If any penalty is imposed on a Government servant on his conviction in a criminal charge, the disciplinary authority can make such order as it deems fit (dismissal from service is one such order contemplated under Rule 19) on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above provisions of the Constitution. This is a summary procedure provided to take disciplinary action against a Government servant who is already convicted in a criminal proceeding. The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge. Union of India v. Sunil Kumar Sarkar, AIR 2001 SC 1092: 2001(3) SCC 414: 2001 Supp (1) JT 193 The last part of Rule 14 of the Railway Rules, which is similar to last part of Rule 19 of CCS (CCA) Rules, 1965, runs thus:. “the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit”. The Supreme Court held, “the words “consider” has been used in contradistinction to the word “determine”. The rule making authority deliberately used

R. 19]


415

the word “consider” and not “determine” because the word “determine” has a much wider scope. The word “consider” merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the final orders that may be ed by the said authority. In other words, the term “consider” postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. Such an inquiry would be a summary inquiry to be held by the disciplinary authority after hearing the delinquent employee. It is not at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under Rule 14 of the Railway Rules of 1968 which incorporates the principle contained in Article 311(2) proviso (a). This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the istration and other extenuating circumstances or redeeming features, if any, present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence….. where a stern warning or a fine would have been sufficient to meet the exigencies of service. It is possible that the delinquent employee may be found guilty of some technical offence, for instance, violation of the transport rules or the rules under the Motor Vehicles Act and so on, where no major penalty may be attracted………… In other words, the position is that the conviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the course of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty inspite of the conviction……… We must, however, hasten to add that we should not be understood as laying down that the last part of Rule 14 of the Railway Rules of 1968 contains a licence to employees convicted of serious offences to insist on reinstatement. The statutory provision referred to above merely imports a rule of natural justice in ening that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fair-play. The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interests of istration to retain such a person in service.”.Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8; Jokhan v. Union of India, 1982(1) SLR 352.

416


[R. 19

The petitioner was originally dismissed under Rule 19(i) because of his conviction under Sections 500 and 501, Indian Penal Code. In appeal, it was modified to one of compulsory retirement. ittedly, no notice was issued before ing the order of dismissal. Evidently, that order was ed in view of the conviction of the petitioner by the criminal court, following the judgements Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8; Jokhan v. Union of India, 1982(1) SLR 352, it was held, that since no summary enquiry was held and opportunity was not given to the delinquent employee, the order of dismissal and the order of compulsory retirement and the subsequent order refusing to set aside that order to be set aside. It was left open to the authorities, if they still want, to take action against the petitioner according to law. T. Jayant v. Union of India, 1980 SLJ 438: 1980(2) SLR 507: 1981(1) SLR 226. In view of the enunciation by the Supreme Court in T.R. Challappan”s case (supra) of the requirement of affording an opportunity of hearing before the services are terminated in the wake of an order of conviction, while considering Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 which is identical with Rule 9 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, the impugned order dismissing the petitioner was quashed. Sardara Singh v. istration of Union Territory, Chandigarh, 1980(3) SLR 702; Som Dutt v. Union of India, 1981(1) SLJ 5. See also D. Krishnamoorthy v. Union of India, 1994(8) SLR 474 (CAT Madras). An order imposing penalty to the Government servant under Rule 19(i) without giving any opportunity of hearing to him would be in violation of the principles of natural justice and the same would be void. Dost Mohammad v. Union of India, 1981(3) SLR 274 All; Kirti Kumar D. Vyas v. State of Gujarat, 1981(1) SLR 556: 1983 Lab IC 67. Conviction of assault was followed by removal. The punishment was held to be proper. Past record was also considered. D.S.R. Murthy v. Director, South Central Railway Circle, Survey of India, 1988(6) SLR 462 (CAT Hyderabad). Departmental inquiry may be dispensed with where the employee has been convicted of grievous hurt (Section 326, IPC) by a Criminal Court. K. Ramababu v. Chief Staff Officer, 1988(5) SLR 392. Where removal of delinquent employee is ordered under Rule 19, CCS (CCA) Rules, 1965 (after arrest and conviction under Section 75, Madras City Police Act for using abusive language) only the conduct that led to the conviction can be made the basis of the order. Other circumstances cannot be taken into . V. Ramachandran v. Director, BCG Vaccine Laboratory, 1989(6) SLR 444 (CAT, Madras). Disciplinary authority has power to impose any penalty under Rule 19(i), CCS (CCA) Rules on the ground of conduct which has led to conviction on a criminal charge even if an appeal against the conviction is pending. The fact that sentence was suspended and delinquent released on bail is immaterial. Om Prakash Narang v. Union of India, 1989(2) SLR 476, 484, para 14 (CAT Delhi) (FB) overruling CAT v. Union of India, ATR 1987(1) CAT 258.

R. 19]


417

Where an order convicting and sentencing an accused public servant is the subject matter of appeals and the accused is released on bail, such release does not suspend the conviction. Om Prakash Narang v. Union of India, 1989(2) SLR 476 (CAT Delhi). 6. Predetermination of Penalty — The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge. Therefore, the question of having a pre-determined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show cause notice and reply to such show cause notice, if any, should be properly considered before making any order under this Rule. Of course, it will have to bear in mind the gravity of the conviction suffered by the Government servant in the criminal proceedings before ing any order under Rule 19 to maintain the proportionality of punishment. In the instant case, the disciplinary authority followed the procedure laid down in the Rule 19, hence, it was held that it can not be said that the disciplinary authority had any pre-determined mind when it ed the order of dismissal. Union of India v. Sunil Kumar Sarkar, AIR 2002 SC 1092: 2001(3) SCC 414: 2001 Supp(1) JT 193; 2001(3) RCR 40: 2001(2) SLR 271 (SC). 7. Delay in initiating proceedings — Delay of over two and half year in initiating disciplinary action on the basis of conduct leading to conviction on the charge of corruption. Appeal against the order of conviction was pending. Delay sought to be explained by the fact that the disciplinary proceedings were initiated after obtaining legal advice. Held that the delay was properly explained and also that such delay does not vitiate the disciplinary proceedings. Deputy Director of Collegiate Education (istration) v. S. Nagoor Meera, AIR 1995 SC 1364: 1995(3) SCC 377: 1995(3) JT 32: 1995(2) Scale 1: 1995(2) SLR 379: 1995(29) ATC 574: 1995(2) SLJ 89: 1995 Lab IC 1615. 8. Reference to conduct leading to conviction — Simply because a person is convicted, he cannot be dismissed from service. Both under Article 311 of the Constitution of India and the service rules, a person can be dismissed from service on the ground of conduct that has led to his conviction on a criminal charge. When in the order of dismissal there is no reference to the conduct of the employee at all that led to the conviction. The order of dismissal was held to be liable to be set aside. Balwan Singh v. State of Haryana, 1999(2) SLR 595 P&H. 9. Conviction for Conduct not in Course of Employment — Rule 19(i) can not be invoked to dispense with the services of a Government servant if the conduct which led to his conviction was not in the course of employment and could not be misconduct as per the Conduct Rules. A domestic quarrel which is wholly unrelated with the employment of the Government servant cannot be a misconduct for the purpose of Rule 19(i). Krishna Kuttey v. Sr. Supdt. of Post Offices, 1975 SLJ 749 (Kerala); Dost Mohammed v. Union of India, 1981(3) SLR 274 All. But in another case where conviction was ordered under Section 498-A of Penal Code but convict was released on probation. Held that such release on probation cannot preclude department from taking disciplinary action for misconduct leading to

418


[R. 19

the offence which resulted in conviction. Vincent Varghese v. State Bank of India, 1995(5) SLR 73 Ker (DB). A person may be removed for an unbecoming act. Even if it was committed outside office hours. Md. Zaboor Ahmed Rahim v. Union of India, 1988(2) SLJ 339 (CAT Pat). 10. Probation of Offenders Act: Effect of Benefit under Section 12 — An order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the court that he is guilty cannot be washed out at all because that is the sine qua non for the order of release on probation of the offender. The order of the release on probation is merely in substitution of the sentence to be imposed by the Court under Sections 3, 4 or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof. The order of the Magistrate releasing the offender on probation does not obliterate the stigma of conviction. Therefore, it cannot be said that Section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused. Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8. Where the official was convicted but was given the benefit under the provisions of Section 4(1) of the Act was not given any opportunity of being heard before the impugned order was ed, nor any enquiry was held, the impugned order of penalty was quashed. Jile Singh v. Sub-Divisional Officer, Telegraphs, 1982(1) SLJ 578: 1982(2) SLR 225. Where a Government servant is convicted, but released on probation disciplinary authority can remove him from service. But before doing so, he must consider the conduct that led to conviction. Failure to do so vitiates the order of removal. P.Selvaraj v. Assistant Engineer, Telephones, 1990(3) SLR 223 (CAT Madras). Where a person is convicted by a criminal court but released by the court on probation, action under Rule 19(1) CCS (CCA) Rules, 1965 for his removal, after considering his explanation is permissible. Ratti v. Union of India, 1990(3) SLR 351 (CAT Jabalpur). Release of delinquent on probation of good conduct does not exonerate him from the departmental punishment that can be imposed on conviction of a criminal charge. Union of India v. Bakshi Ram, 1990(2) ATJ 121 (SC). See also Additional D.I.G. of Police, Hyderabad v. P.R.K. Mohan, 1997(11) SCC 571: 1998 SCC(Cr) 206. For the purpose of Rule 19(1), CCS (CCA) Rules, dismissal is competent, where the employee is released by the criminal court on probation. P. Anand Raj v. Union of India, 1989(4) SLJ (CAT) 10: 1990(2) ATJ 384 (CAT New Bombay). In Section 12, Probation Act, the term “suffer disqualification, if any, attaching to a conviction for an offence under such law” does not bar dismissal. Action under the

R. 19]


419

Probation Act does not mean that the conviction has been set aside. Ratti alias Ratiram v. Union of India, 1990(13) ATC 71 (Jabalpur). In a case decided by the CAT Madras, applicant had been convicted under Section 323, Indian Penal Code and was released after due onition. Taking into the conduct which had led to his conviction, the disciplinary authority, after inquiry under Rule 19(1), CCS etc. Rules, awarded the penalty of reduction by 3 stages for 3 years. It was held that there was nothing illegal in the course adopted. P. Vaidyanath Swamy v. Secretary to Government, Education Department, 1989(6) SLR 459 (CAT Madras). [The Tribunal held in the above case that it was not correct to argue that when a person is released after due onition, there is no “conviction.”] Petitioner was convicted of bigamy but released under the Probation of Offenders Act. The disciplinary authority imposed on the petitioner a penalty of reduction of pay for 2 years without cumulative effect. The appellant authority enhanced it without reasons to five years” reduction. It was held that while the enhancement was illegal, the penalty of 2 years” reduction should stand. Release on probation does not come in the way. Sudhir Chandra Jha v. Union of India, 1990(6) SLR 166 (CAT Patna). 11. Probation of Offenders Act: Object of Section 4 and 12 — It is manifest from the language of Section 4 of the Act that the provisions thereof come into play only when a person is found guilty of having committed an offence. The Court records a conviction in consonance with the modern policy of penological reforms and instead of sentencing such a convict at once to imprisonment, he is released on probation on his entering into a bond to appear and receive sentence during the period of probation and in the mean time he has to keep peace and be of good behaviour. If such a convict violates the conditions of the good behaviour, he can be sentenced to imprisonment. The object of this beneficial legislation is to provide an opportunity to persons who are not habitual offenders and are not guilty of heinous crimes to improve themselves instead of keeping them in jail and turning them into hardened criminals. The object of Section 12 of the Act is to remove disqualification attaching to a conviction of an offence so that if such a person seeks to lead a normal and useful life, the factum of conviction does not stand in his way and prove a disqualification in obtaining a job or for being elected to the elective offices. These instances can be multiplied. However, from the scheme of the Act and the language of Section 12, it cannot be spelled out that release on probation exonerates a person of the charges of misconduct levelled against him. What Section 12 of the Act has in view is an automatic removal of disqualification flowing from conviction and not an obliteration of conduct of the accused. Departmental proceedings are not taken because the man is convicted. They are directed against the original misconduct of the delinquent. Section 12 of the Act does not afford immunity against departmental proceedings for the original misconduct. It is that misconduct which provides the basis for punishment and not the conviction. Kesar Singh v. Union of India, 1981(3) SLR 415. An employee in a drunken state assaulting his superior in office, is a grave misconduct. For such misbehaviour the employee was convicted but released on probation. Held that release on probation means misconduct was not serious and such

420


[R. 19

employee could continue in service. Babulal v. State of Rajasthan, 2002(1) SLR 599 Raj (DB). In another case conviction was ordered under Section 498-A of Penal Code but convict was released on probation. Held that such release on probation cannot preclude department from taking disciplinary action for misconduct leading to the offence which resulted in conviction. Vincent Varghese v. State Bank of India, 1995(5) SLR 73 Ker (DB). 12. Power of appellate criminal court — Delinquent convicted under Section 19(n) read with Section 16(2) of CRPF Act, 1949 being under influence of liquor. Held that the Appellate court hearing the appeal against the order of conviction has no power to direct that conviction was not to interfere with service career of the convict. Commandant 20 BN. ITB Police v. Sanjay Binjoa, AIR 2001 SC 2058: 2001(5) SCC 317: 2001 AIRSCW 1858: 2001 All LJ 1126: 2001(2) AllCriLR 668: 2001 CalCriLR 385: 2001(2) ChandCriC 207: 2001(2) Crimes 277: 2001(2) ECC 300: 2001 Mad LJ (Cri) 867: 2001(20) OCR 755: 2001(2) RCR 798: 2001(5) SLR 457. Allegation against a member of PAC of commission of revolt and Supreme Court maintaining the conviction under some of the provisions and setting aside the conviction under remaining provisions. Prayer for ameliorative relief of restricting the disciplinary proceedings against them. Held that such relief can not be granted but liberty granted to the appellant to approach State Government for securing such relief. Krishna Gopal Singh v. State of Uttar Pradesh, AIR 2000 SC 3616: 2000 SCC(Cr) 93. 13. Suspension of sentence— Clause (a) of Article 311 (2) speaks of "conduct which has led his conviction on a criminal charge". It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Deputy Director of Collegiate Education (istration) v. S. Nagoor Meera, AIR 1995 SC 1364: 1995(2) SCR 308: 1995(3) SCC 377: 1995(2) SLR 379: 1995(29) ATC 574: 1995(2) SLJ 89: 1995 Lab IC 1615. 14. Set aside of conviction — The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. Deputy Director of Collegiate Education (istration) v. S. Nagoor Meera, AIR 1995 SC 1364: 1995(2) SCR 308: 1995(3) SCC 377: 1995(2) SLR 379: 1995(29) ATC 574: 1995(2) SLJ 89: 1995 Lab IC 1615. Order of dismissal ed on of the conviction but order of conviction set aside by the Supreme Court. Held that employee is entitled to reinstatement in service with full back wages. Sat Pal v. Chief of the Army Staff, 2002(1) SLR 37Delhi.

R. 19]


421

Termination on of the conviction which was ultimately set aside in appeal and substituted with acquittal. Termination though effected after payment of retrenchment benefit, it was held that the order of termination being punitive and stigmatic and in violation of principles of natural justice is not sustainable. Nar Singh Pal v. Union of India, AIR 2000 SC 1401: 2000(3) SCC 588: 2000(96) FJR 502: 2000(2) SLR 592 (SC): 2000(3) SLJ 332: 2000 Lab IC 1377: 2000(85) FLR 458. 15. Effect of acquittal — Acquittal in criminal case does not affect the departmental proceedings which can go on simultaneously and the order of acquittal cannot ipso facto conclude the departmental proceedings. Mysore Paper Mills Ltd. v. G. Shekhar @ Gyana Shekharan, 2002(3) SLR 677 Kar (DB). Nor acquittal would be a ground for setting aside order of dismissal especially when charges in criminal case and charges in departmental proceedings were different. Suresh Kumar Tiwari v. D.I.G.P.A.C., Kanpur Anubhag, Kanpur, 2002(3) SLR 680 All. Merely because accused has been acquitted, the power of authority to continue with Departmental Inquiry is not taken away. Gobardhan Manna v. State of West Bengal, 2002(3) SLR 707 Cal (DB). Acquittal in criminal case on benefit of doubt does not affect disciplinary proceedings. Allegations of misconduct i.e. (a) Fraudulently effecting withdrawal of money from SB of depositor without his knowledge by putting signature of the depositor himself (b) Failing to for amount realised by him, as customs duty in respect of foreign parcels found established in enquiry. istrative Tribunal in view of acquittal in criminal trial set aside the finding of departmental proceedings on first charge and directed for review of the punishment afresh. Supreme Court in appeal held that the decision of Tribunal was erroneous because nature and scope of criminal case and departmental proceeding are very different. While in criminal case the charge to be proved by the Standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities. Senior Superintendent of Post Offices, Pathanamthitta v. A. Gopalan, AIR 1999 SC 1514: 1997(11) SCC 239: 1999(1) LLJ 1313: 1999 Lab IC 234: 1999(82) FLR 784: 2000(1) LLN 92; See also Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh, 1994 Supp (3) SCC 628:1994(5) SLR 534: 1994(28) ATC 594: 1994(69) FLR 1078: 1994(4) CCR 769(SC): 1995(2) LLJ 633: 1996(2) LLN 451; Govind Das v. State of Bihar, 1997(11) SCC 361. Disciplinary proceedings initiated against a police officer alleging highly reprehensible conduct in flouting the provisions of Section 160(1) CrPC and Standing Instructions of the Director General of Police by allowing two women to remain at the Police station at night. Acquittal ordered by appellate court on the ground that the two ladies had turned hostile and had not ed the prosecution case. Held that the criminal charge and the charge in the departmental enquiry were entirely different. The appellate court in the criminal case came to the conclusion that since the two ladies had not ed the prosecution case, the charges against the appellant were not proved. In the judgment, the criminal courts have, however, accepted that one of the ladies, namely Rani, visited the police station at midnight allegedly to find out as to what had happened to the other lady (Rani”s sister-in-law), who was already in the police station. When the two ladies were ittedly at the police station at night, no fault can be found with the charges, as framed in the departmental enquiry. It is a settled proposition of

422


[R. 19

law that strict rules of evidence are not applicable to departmental enquiries. Before the Enquiry Officer, the statements of both the ladies were recorded. He appreciated the evidence in the light of their earlier statements made in the preliminary enquiry. In this view of the matter, it is not correct to say that there was no evidence before the enquiry officer. State of Tamil Nadu v. M.A. Waheed Khan, 1998(8) SCC 723: 1999(3) LLJ 710. 16. Back wages — In case of acquittal, grant of consequential benefits with all back-wages etc. cannot be as a matter of course as it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course, on his acquittal. In such case the disciplinary authority may enquire into misconduct unless, the self-same conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all and acquittal is not given on benefit of doubt. Krishnakant Raghunath Bibhavnekar v. State of Maharashtra, AIR 1997 SC 1434: 1997(3) SCC 636: 1997(1) LLJ 1190: 1997(2) SLR 396: 1997(2) LLN 602: 1997(2) SLJ 166: 1997(1) SCJ 597: 1997 Lab IC 1538 . Order of termination ed on of conviction u/s 302 & 34 of IPC which was later on set aside and reinstatement with continuity of services was ordered. In regard to back wages it was held that the employee himself was disabled to render service during the period of incarceration and therefore back wages were rightly denied. Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board, Himmatnager, AIR 1997 SC 1802: 1996(11) SCC 603: 1997(1) SLR 14: 1997(2) LLN 979: 1997(2) SLJ 38: 1997(2) LLJ 683: 1997(91) FJR 53. One of the delinquents granted back wages while ing the consequential order for reinstatement while the other delinquent denied back wages on flimsy grounds. Held that in the absence of very relevant and exceptional circumstances, the consequential order should also be of similar import in both the cases therefore denial of back wages by Tribunal is improper. Ramesh Chander v. Delhi istration, 1996(10) SCC 409: 1996(3) SLJ 124: 1996(5) SLR 166: 1996(74) FLR 2235: 1996(6) AD(SC) 316: 1997(1) UJ 97: 1997(3) LLJ 509. 17. Fresh Departmental Inquiry: Whether Necessary — It is not at all necessary for the disciplinary authority to order a fresh departmental enquiry when a Government servant has been convicted on a criminal charge. The conviction of the delinquent employee would be taken as sufficient proof of misconduct. The disciplinary authority will embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee after hearing the delinquent employee. Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8. 18. Natural Justice: Violation of — Imposition of penalty without giving opportunity to delinquent officer to explain his position is in violation of principles of natural justice. Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8; T. Jayant v. Union of India, 1980 SLJ 438: 1980(2) SLR 507: 1981(1) SLR 226; Sardara Singh v. istration of

R. 19]


423

Union Territory, Chandigarh, 1980(3) SLR 702; Som Dutt v. Union of India, 1981(1) SLJ 5. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing and not condemned unheard. As to what are the rules of natural justice to be followed in a particular case would depend upon the circumstances in each case and must also deemed on the provisions of law under which the charges are being inquired into in the disciplinary proceedings. Uttar Pradesh Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753: 1999(1) SCC 741: 1999(1) CLT 134(SC): 1999(2) SLR 576: 1999(1) LLJ 633: 1999(1) LLN 1081: 1999(3) SLJ 124. In one case, right through, the delinquent officer had entertained a doubt about the impartiality of the enquiry to be conducted by the enquiry officer, when he made a representation at the earliest, requesting to change the enquiry officer, the authorities should have acceded to the request and appointed another enquiry officer, other than the one whose objectivity was doubted. Unfortunately, that was not done. Even after the Director General had given an opportunity to the delinquent to participate in the enquiry, the enquiry officer obviously was expected to recall the ex-parte order and given the delinquent an opportunity to cross-examine the witnesses already examined and to adduce his evidence in rebuttal. However, the enquiry officer did not adopt the said procedure which would have been just, fair and reasonable. Under these circumstances, it was held to be a clear case that the delinquent had not been afforded a fair opportunity, much less a reasonable opportunity to defend himself. That has resulted in violation of the principles of natural justice and fair play offending Arts. 41, 21 and 311(2) of the Constitution. The orders of dismissal as confirmed by the appellate authority were accordingly quashed. Indrani Bai v. Union of India, 1994 (2) SCC 256: 1994(3) SCR 608: 1994(27) ATC 755: 1994(2) UJ 431: 1994(2) SLR 672: 1994(69) FLR 94: 1994(2) LLN 391: 1995(1) LLJ 431. 19. Combined Effect of Rule 10(2)(b) and Rule 19(i) — The combined effect of Rule 10(2)(b) and Rule 19(i) is that as soon as it is brought to the notice of the appointing authority that the Government servant has been convicted of an offence sentenced to an imprisonment of the description mentioned in Rule 10(2)(b), he may be forthwith dismissed from service or shall be deemed to have been under suspension by an order of the appointing authority with effect from the date of conviction. Union of India v. Susanta Kumar Mukherjee, 1977(1) SLR 334 Cal.

Clause (ii) 20. Dispensing with enquiry — Dispensation of a regular enquiry is permissible when the authority is satisfied from the materials placed before him that it is not reasonably practicable to hold a departmental enquiry. It is incumbent on the authority to show that the satisfaction is drawn for adequate reasons and not the outcome of whim and caprice of the concerned authority. Atul Chandra Das v. Abhijit Kumar Sinha Kashyap, 2002(3) SLR 751 Gau. The power to dismiss an employee by dispensing with an enquiry is not be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the

424


[R. 19

facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the Court to substitute its view for that of the disciplinary authority as if the Court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority”s order dispensing with enquiry. Indian Railway Construction Co. Ltd. v. Ajay Kumar, 2003(4) SCC 579: 2003(2) SLR 639: 2003(2) LLJ 150. See also Kendriya Vidyalaya Sangathan v. S.C. Sharma, 2005 (2) SCC 363: 2005 (2) SLR 1 (SC). 21. Not Reasonably Practicable to Hold an Inquiry in the Manner Provided in These Rules: Meaning of — The expression “not reasonably practicable to hold an inquiry in the manner provides in these rules” must be strictly construed to mean that there were physical or legal impediments to the holding of such an inquiry or in other words that the holding of such an inquiry was not possible. If the rule is invoked the only requirement is for the authority to “consider the circumstances of the case and make such orders thereon as it deems fit”. R.K. Misra v. General Manager, Northern Railway, 1977 SLJ 69: 1977(2) SLR 127 Delhi. The requirement is not that the enquiry is impossible and cannot in any circumstances be held, nor it is the requirement of the law that such an inquiry is wholly or utterly impracticable. On the other hand, the requirement is at the lowest plane that it is not reasonably practicable to hold the kind of enquiry envisaged by law. This distinction has to be kept in mind because it is one thing to hold, it is impossible or totally impracticable and entirely different to say that the empowered authority for some valid reason feels satisfied that reasonable consideration make the holding of the prescribed enquiry as impracticable. Boota Ram v. State of Punjab, 1980(2) SLR 195 P&H. A Divisional Bench of Delhi High Court in Satyavir Singh v. Union of India, 1982 Lab IC 663: 1981(3) SLR 383, did not agree with the view of single Judge in R.K. Mishra”s case (supra) and held that it is not necessary that there should be physical or legal impediments to the holding of an inquiry and it would be enough compliance with the provisions if the reasons given for dispensing with the inquiry are germane and not extraneous. If the possible witnesses are under threats or coercion, it cannot be disputed that no impartial inquiry is possible. The Division Bench accepted the view of Punjab & Calcutta High Court in Boota Ram”s case (supra) and State of West Bengal v. Narendra Narayan Das, 1977 Lab IC 856: 1978(1) SLR 646. Also see Baidyanath Singh v. General Manager, S.E. Rly., 1983(1) SLR 1 (Cal). In an enquiry against police constable, the enquiry dispensed on the ground that appellant himself being a Police Constable could have influenced the witnesses who would have come in the departmental enquiry. It was held that such ground was not tenable and the order dispensing with the departmental inquiry is not in accordance with law. Chhote Lal v. Union of India, 2000(10) SCC 196. 22. Ambit of Consideration by the Disciplinary Authority: Associating of Employee — H.L. Anand J., in R.K. Misra v. General Manager, Northern Railway,

R. 19]


425

1977 SLJ 69: 1977(2) SLR 127, said that: “It could, therefore, be reasonable to interpret the concluding part of the Rule in context of clause (ii) of it to imply an obligation to consider the material objectively associating the delinquent with the process, in so far as such an association is reasonably practicable”. Division Bench of Delhi High Court in Satyavir Singh v. Union of India, 1982 Lab IC 663, did not agree with this view. A Division Bench of Karnataka High Court in T.K. Veerangaiah v. State of Karnataka, 1981(3) SLR 87, did not agree with the views of Allahabad and Delhi High Court in Union of India v. Rajendra Prasad Srivastava, 1977 (2) SLR 81 All and R.K. Misra v. General Manager, Northern Railway, 1977 SLJ 69: 1977(2) SLR 127 and held that the Supreme Court decision in Divisional Personnel Officer, Southern Railway v. T.R. Challappan, AIR 1975 SC 2216: 1976(1) SCR 783: 1976(3) SCC 190: 1975 Lab IC 1598: 1976(1) LLJ 68: 1976(1) LLN 269: 1975(2) SLR 587: 1976 SLJ 8 laid down in the law only in regard to the cases falling under the first category and the said decision does not govern the falling under the second category. Where the departmental inquiry has been dispensed with, and, against the final order (removal and dismissal), there is an appeal, the appellate authority must make a sincere effort to find out whether at that stage, it is not reasonably, practicable to hold the inquiry. Mere speculation that some witnesses might have died or retired, is not enough. Other witnesses can still be summoned. Ekrajul Khan v. Union of India, 1990(13) ATC 456 (CAT Patna). Even where the departmental inquiry has been dispensed with under Article 311(2) of the Constitution second proviso, the employee can file a departmental appeal under CCS (CC&A) Rules, 1965 against the order of removal or dismissal. Satyavir Singh v. Union of India, 1985(2) Supp SCR 791: AIR 1986 SC 555: 1985(4) SCC 252: 1986 Lab IC 1: 1986(1) SLR 255: 1986(52) FLR 62: 1986(1) SLJ 1: 1986(1) ATR 78: 1986 SCC (Lab) 1: 1986(4) ELJ (LS) 53: V. Kesavan Kutty v. Union of India, 1990(7) SLR 571, 584, 585, para 28 (CAT Hyderabad). A perusal of the dismissal order indicated that there was no mention of the reasons required to be recorded by the authority in writing to permit exercise of the power under proviso (b) to clause (2) of Article 311. There was also no other material produced to show that the requisite reasons were recorded by that authority in writing elsewhere. In such a situation, it was held that the Tribunal rightly reached the conclusion that the power to dispense with the inquiry was not available. But the quashing of the dismissal orders does not deprive the appellant of the authority to hold an inquiry into the alleged misconduct and to take the necessary consequential actions depending on the outcome of that inquiry. State of Orissa v. Dinabandhu Baheta, 1997(10) SCC 383: 1998(2) LLJ 107: 1998(3) LLN 577; See also Chandigarh istration, Union Territory, Chandigarh v. Ajay Manchanda, AIR 1996 SC 3152: 1996(3) SCC 753: 1996 Lab IC 1267: 1996(2) SLR 673: 1996(73) FLR 1192: 1996(2) LLJ 675: 1996(2) LLN 243. 23. Whether the Conclusion of Disciplinary Authority Open to Challenge — Clause (3) of Article 311, it may be noticed, declared that where a question arises whether it is reasonably practicable to hold an inquiry as contemplated by Clause (2), the decision of the authority empowered to dismiss such person shall be final on that

426


[R. 19

question. Union Territory, Chandigarh v. Mohinder Singh, AIR 1997 SC 1201: 1997(2) SCR 71: 1997(3) SCC 68: 1997(1) LLJ 826: 1997(1) SLR 707: 1997(2) LLN 70: 1997(76) FLR 289: 1997(2) SCJ 134: 1997 Lab IC 1493. Once the authority has properly applied the provision the conclusion of fact that it was not reasonably practicable to hold an inquiry was final in view of clause (3) of Article 311 of the Constitution. The satisfaction of the authority must be indicated by recording “some reason” which apparently should have a nexus to the practicability or otherwise of holding an enquiry. If that has been done, the constitutional prescription would stand satisfied. The sufficiency of the material on which such satisfaction has been arrived at or the weight or cogency of those reasons, if they are germane to the issue are not matters for the court to consider, but for the empowered authority to be satisfied about it. A challenge to the satisfaction or decision of not holding an enquiry can possibly be raised only if both the letter and the spirit of the law are violated by the non-recording of any reason whatsoever. Secondly, such a decision can perhaps be successfully assailed only if it is clearly established that the reason recorded by the empowered authority are not at all germane to the issue and in fact are wholly extraneous thereto. Lastly, the exercise of the power under Article 311(2)(b) of the Constitution could obviously be assailed on the grounds of established mala fide which would then render the action is a fraud on the power granted by the constitution. R.K. Misra v. General Manager, Northern Railway, 1977 SLJ 69: 1977(2) SLR 127; Boota Ram v. State of Punjab, 1980(2) SLR 185. The rule envisages the satisfaction of the Disciplinary Authority, and as such, the Court would not be entitled to substitute its own judgement in order to ascertain whether or not it was reasonably practicable to hold an enquiry. But where the Disciplinary Authority has proceeded on irrelevant considerations or has failed to take relevant considerations into , or has come to a decision which a reasonable person could not arrive at, the decision of the Disciplinary Authority would be open to challenge. Virendra Prasad Mishra v. Union of India, 1982(2) SLR 3 Patna. The disciplinary authority taking view that it was not reasonably practicable to hold inquiry as the witnesses would not come forward freely to depose against the delinquent. Held that the order of disciplinary authority on the question of practicability to hold the inquiry is final. Chandigarh istration v. Gurdit Singh, 1997(10) SCC 430: 1998(4) JT 253: 1998(79) FLR 750. In one case there was a failure on the part of the Authority concerned in exercise of power under Rule 19(ii) of the CCA Rules as the order did not contain reasons in writing, it was held by Supreme Court that it would not be appropriate for the Court to interfere with the impugned order in exercise of its jurisdiction under Article 136 of the Constitution of India. Prabhu Lal Sharma v. Union of India, 2001 Supp (1) JT 584: 2001(6) Supreme 592: 2001(5) SLT 128. The Superintendent of Police, Intelligence, had reported that the employee-sub inspector “is a terror in the area” and, more important, in his very presence, the respondent “intimidated the complainant Shri Ranjit Singh who appeared to be visibly

R. 19]


427

terrified of this Sub Inspector”. It was also reported that the other persons who were arrested with Ranjit Singh, and who were present there, immediately left his office terrified by the threats held out by the respondent. In such a situation — and keeping in view that all this was happening in the year 1991 in the State of Punjab — it was held that the Senior Superintendent of Police cannot be said to be not justified in holding that it is not reasonably practicable to hold an inquiry against the respondent. Union Territory, Chandigarh v. Mohinder Singh, AIR 1997 SC 1201: 1997(2) SCR 71: 1997(3) SCC 68: 1997(1) LLJ 826: 1997(1) SLR 707: 1997(2) LLN 70: 1997(76) FLR 289: 1997(2) SCJ 134: 1997 Lab IC 1493. In another case there was no mention of the reasons required to be recorded by the authority in writing to permit exercise of the power under proviso (b) to clause (2) of Article 311. There was no other material produced to show that the requisite reasons were recorded by that authority in writing elsewhere. In such a situation, it was held that the conclusion reached by the Tribunal that this power was not available to dispense with the inquiry cannot be faulted. State of Orissa v. Dinabandhu Baheta, 1997(10) SCC 383: 1998(2) LLJ 107: 1998(3) LLN 577. 24. Whether Reasons are to be Communicated to the Employee — The requirement of the rule is of recording the reasons and not of communicating the same to the employee. R.K. Misra v. General Manager, Northern Railway, 1977 SLJ 69: 1977(2) SLR 127. In Boota Ram v. State of Punjab, 1980(2) SLR 185, It was held that, “There is no legal obligation on the respondent State to serve a copy of the reasons for dispensing with the enquiry on the delinquent employee. No adverse consequences would, therefore, flow from the non-delivery of these reasons to him if they have otherwise been duly recorded in accordance with law. It is, of course, elementary that the said reasons cannot be withheld from the employee and if a proper demand therefore is made by him, then access thereto is not denied”. 25. Whether Rule Authorises to Altogether Dispense with an Inquiry — Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968, is similar to the present rule Thaker, J., while interpreting the rule in Bholanath Khanna v. Union of India, 1975(1) SLR 277 Guj, held that the rule merely conceives of a situation where the disciplinary authority may not consider it reasonably practicable to hold an inquiry and provides for a solution in that behalf. And the solution provided is that if it is not feasible to hold an enquiry in the prescribed manner, a special procedure as may be deemed fit by the authority concerned may be adopted by it. The bare minimum that he is obliged to follow is to appraise the Railway/Government servant concerned of the imputations or fault attributed to him and to require him to submit his explanation or comments in regard to the imputations and as regards as the penalty proposed. He cannot dispense with inquiry altogether. A Division Bench of Delhi High Court in Satyavir Singh v. Union of India, 1982 Lab IC 663, held that clause (b) to proviso to Article 311(2) of the Constitution depends upon the satisfaction of the authority concerned that for some reasons to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry. Since reasons have to be an objective satisfaction the reasons can be examined by a court of law, but, of course, to the extent permissible. There is no express or implied requirement of law that the reasons have to be communicated to the aggrieved employee.

428


[R. 19

26. Natural justice and dispensation of enquiry — The doctrine of principle of natural justice has no application when the authority concerned is of the opinion that it would be inexpedient to hold an enquiry and that it would be against the interest of security of the Corporation to continue in employment the offender-workman when serious acts are likely to affect the foundation of the institution. The principle of natural justice requires to be modulated consistent with the scheme of the Rules. It is settled law that the principle of natural justice cannot supplant but can supplement the law . In that view of the matter, the Rule having been made to meet specified contingency the principle of natural justice by implication, stands excluded. Hari Pada Khan v. Union of India, AIR 1996 SC 1065: 1995 Supp (6) SCR 157: 1996(1) SCC 536: 315: 1996(1) SCJ 21: 1996 SCC(L&S) 333: 1996(32) ATC 481: 1996 Lab IC 934: 1996(1) SLR 641: 1996(1) LLJ 1044: 1996(1) LLN 462.

Clause (iii) 27. Interest of Security of State not to Suffer on Unsubstantial or Hypertechnical Grounds — No doubt Article 311(2) is intended to afford a sense of security to Government servants covered by sub-article (1) and the safeguards provided by subarticle (2) are mandatory. But clause (c) of the proviso to this sub-article which is designed to safeguard the larger interest of the security of the State cannot be ignored or considered less important when construing sub-article (2). The interest of the security of the State should not be allowed to suffer by invalidating the order on unsubstantial or hyper-technical grounds which do not have the effect of defeating the essential purpose of the constitutional safeguards of individual Government servant. B.C. Das v. State of Assam, 1971(1) SCWR 793: AIR 1971 SC 2004: 1971 Supp SCR 477: 1971(2) SCC 168: 1971(2) SLR 756: 1971 Lab IC 1182: 1971(1) LLJ 576. Departmental inquiry may be dispensed with where the delinquent, leading a mob, used filthy language and took a turbulent mood with the help of associates. Abani Kanta Datta v. Union of India, 1988(5) SLR 408 (CAT, Calcutta). 28. President/Governor can Dispense with Enquiry if in the Interest of Security of State: It is not Expedient to Hold it — President/Governor can dispense with the enquiry if the conduct of an inquiry into the charges is not expedient only in the interest of the security of the State or not on any other ground. B. Bhaskara Reddy v. Government of A.P., 1981(1) SLR 249: 1981(1) SLJ 342. 29. Satisfaction of President or Governor Need not be Personal — The decision of any Minister or officer under rules of business made under any of the two Articles 77(3) and 166(3) is the decision of President or the Governor respectively. The decision in Sardari Lal v. Union of India, 1971(3) SCR 461: AIR 1971 SC 1547: 1971(1) SCC 411: 1971(2) SLR 168: 1971(1) LLJ 315, that the President has to be satisfied personally and that the functions of the President cannot be delegated is not the correct statement of law. Shamsher Singh v. State of Punjab, 1974(2) SLR 701 (SC). Decision of Delhi High Court, Sardari Lal v. Union of India, 1971(3) SCR 461: AIR 1971 SC 1547: 1971(1) SCC 411: 1971(2) SLR 168: 1971(1) LLJ 315, is no longer good law.

R. 19]


429

30. Satisfaction of the President or Governor is Subjective — The power of the President or the Governor under Clause (c) of second proviso to Article 311(2) is to be exercised on his subjective satisfaction and is not examined by the courts. The issues of the interest of security of State are not justifiable and it cannot be subjected to judicial review or scrutiny. Udailal v. State of Rajasthan, 1980(2) SLR 695. A Division Bench of Andhra Pradesh in B. Bhaskara Reddy v. Government of A.P., 1981(1) SLJ 1342: 1981 SLR 249, however, held that an order removing the Government servant is an istrative act of the Governor, no doubt on his being satisfied that it is not expediency in the interest of the security of the State to hold an enquiry, it is open to the Court to find out whether there was any material at all before the Governor to such an order. Subjective satisfaction of the President is subject to judicial review and its validity can be examined by the Court on the ground that the satisfaction of President or the Governor is vitiated by mala fide or is based on wholly extraneous or irrelevant grounds. A.K. Kaul v. Union of India, AIR 1995 SC 1403: 1995(3) SCR 469: 1995(4) SCC 73: 1995(4) JT 1: 1995(3) SLR 1: 1995(3) SLJ 1: 1995(30) ATC 174: 1995 Lab IC 1778: 1995(2) LLN 1. 31. Termination of Service in Interest of Security of State Under Article 310: Order to Recite President”s satisfaction — The service of petitioner, a permanent employee were terminated under clause (1) of Article 310. The impugned order did not recite that the President was satisfied that in the interest of security of the State it was not expedient to hold an enquiry under Article 311(2). The impugned order thus violates Article 311(2) of the Constitution. Khairat Hussain v. Union of India, AIR 1969 All 422; Mohammad Akhtar v. Union of India, 1967 All LJ 645; Swadeshi Cotton Mills Co. v. State Industrial Tribunal, U.P., AIR 1961 SC 1381: 1962(1) SCR 422: 1961(2) LLJ 419: 1961(3) FLR 527: 1961-62(20) FLR 325: 1963(1) SCJ 398. 32. Decisions of Governor or President that in the Interest of the Security of State, it is not Expedient to Hold an Inquiry: Judicial Review of — The inquiry as envisaged in Article 311 (2) and/or that may be prescribed under the relevant Discipline and Appeal Rules of the Union or the State Government is not required to be gone through if the President or the Governor as the case may be, is satisfied about its inexpedience in the interest of the security of the State. The Court cannot substitute its view for those of the executive as to whether it would be expedient in the interest of the security of State of dispense with the inquiry, the Court is however, entitled to inquire whether the conditions precedent to the formation of the satisfaction have any factual basis or that the executive had acted in good faith or on relevant materials upon which the power has been exercised. A.R. Singh v. Principal Secretary to the Government of Gujarat, 1981(2) SLJ 599: 1982 (1) SLR 467; T.K. Veerangaiah v. State of Karnataka, 1981(3) SLR 86; Tukaram Bhau Mane v. State of Maharashtra, 1982 Lab IC 1942. If an order ed under Article 311(2) Proviso (c) is assailed before a Court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State, the court can examine the circumstances on which the satisfaction of the President or the Governor is based; and if it finds that the said circumstances have no bearing whatsoever on the security of

430


[R. 20

the State, the Court can hold that the satisfaction of the President or the Governor which is required for ing such an order has been vitiated by wholly extraneous or irrelevant considerations. Union of India v. Balbir Singh, 1998(5) SCC 216: 1998 AIR SC 2043: 1998(4) SLR 351: 1998(79) FLR 694: 1998(3) SLJ 202: 1999(1) LLJ 735: 1998(77) ECR 11: 1998 Lab IC 1898: 1998(3) LLN 599: 2000(1) LLJ 279: 1999(95) FJR 145. 33. Decision of Review Petition Before the Supreme Court cannot Stand in Way of Reinstatement — K.S. Dhardathan v. Collector of Customs, 1988(1) SLJ 570 (CAT Mad). 34. Non-consultation with Public Service Commission — Non-consultation with the Public Service Commission cannot be held to vitiate the orders impugned. B.C. Das v. State of Assam, 1971(1) SCWR 793: AIR 1971 SC 2004: 1971 Supp SCR 477: 1971(2) SCC 168: 1971(2) SLR 756: 1971 Lab IC 1182: 1971(1) LLJ 576.

PROVISIONS REGARDING OFFICERS LENT TO STATE GOVERNMENTS, ETC. R. 20

20.

Provisions regarding officers lent to State Governments, etc. where the services of a Government servant are lent by one department to another department or to a State Government or an authority subordinate thereto or to a local or other authority (hereinafter in this rule referred to as “the borrowing authority”), the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him— Provided that the borrowing authority shall forthwith inform the authority which lent the services of the Government servant (hereinafter in the rule referred to as “the lending authority”) of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be. (2) In the light of the findings in the disciplinary proceeding conducted against the Government servant:— (i)

if the borrowing authority is of the opinion that any of the penalties specified in clause (i) to (iv) of Rule 11 should be imposed on the Government servant, it may, after


R. 21]

431

consultation with the lending authority, make such orders on the case as it deems necessary: Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced back at the disposal of the lending authority; (ii) if the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and thereupon the lending authority may, if it is the disciplinary authority, such orders thereon as it may deem necessary, or, if it is not the disciplinary authority, submit the case to the disciplinary authority which shall such orders on the case as it may deem necessary; Provided that before ing any such order, the disciplinary authority shall comply with the provisions of sub-rules (3) and (4) of Rule 15. Explanation — The disciplinary authority may make an order under this clause on the record of the inquiry transmitted to it by the borrowing authority, or after holding such further inquiry as it may deem necessary, as far as may be, in accordance with the Rule 14. R. 21

21.

Provisions regarding officers borrowed from State Governments, etc — (1) Where an order of suspension is made or a disciplinary proceeding is conducted against a Government servant whose services have been borrowed by one department from another department or from a State Government or an authority subordinate thereto or a local or other authority, the authority lending his services (hereinafter in this rule referred to as “the lending authority”) shall forthwith be informed of the circumstances leading to the order of the suspension of the Government servant or of the commencement of the disciplinary proceeding, as the case may be. (2) In the light in the findings in the disciplinary proceeding conducted against the Government servant, if the disciplinary authority is of the opinion that any of the penalty specified in clauses (i) to (iv) of

432


[R. 21

Rule 11 should be imposed on him, it may, subject to the provisions of sub-rule (3) of Rule 15 and except in regard to a Government servant serving in the Intelligence Bureau upto the rank of Assistant Central Intelligence Officer, after consultation with the lending authority, such orders on the case, as it may deem necessary: (i)

Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced at the disposal of the lending authority.

(ii)

if the disciplinary authority is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall replace the services of such Government servant at the disposal of the lending authority and transmit to it the proceedings of the inquiry for such action, as it may deem necessary.


Deputation: Meaning of ................................................................................................. 433

2.

Employee on deputation, his legal position ................................................................... 433

3.

Charge-sheet and suspension when on foreign service by parent Government .............. 434

4.

Period of sparing services of officers lent ...................................................................... 434

5.

Recall from deputation .................................................................................................. 434

6.

Recall from foreign service before specified period, without consent of officer ............ 435

7.

Reversion when on deputation by parent Department .................................................... 435

8.

Reversion to parent office by borrowing authority without stigma ................................ 435

9.

Reversion by borrowing authority as punishment .......................................................... 435

10. Appointment temporarily which could be terminated by 15 days notice - Whether notice necessary for reversion to parent department ...................................................... 435 11. Termination while on deputation.................................................................................... 436

Rules 20(1) and 21(1) 12. Other authority ............................................................................................................... 436 13. Suspension by borrowing authority ................................................................................ 436 14. Disciplinary power of borrowing authority .................................................................... 436

R. 21]


433

15. Requirement of “Information” under proviso to sub-rule (1) of Rule20 ........................ 436

Rules 20(2) and 21(2) 16. Imposing of penalty........................................................................................................ 437 17. Jurisdiction of borrowing authority to institute disciplinary proceeding after reversion of person to parent department ....................................................................................... 437 18. Delegation of power of dismissal ................................................................................... 437

1. Deputation: Meaning of— The word “depute” which is a basic word from which the noun “deputation” emanates means which the noun “deputation” emanates means appoint or instructs someone to perform a task for which one is responsible. If the word “deputation” itself is to be used as a noun, it means a person appointed to act in an official capacity or a representative of the another official. Therefore, it will be seen that the word “deputation” has a special meaning in the service jurisprudence and is not used in the rules in its contrary dictionary parlance. M.V. Girija v. High Court of Madras, 2002(3) SLR 397 Mad (DB). Concept of "deputation" is well understood in service law and has a recognised meaning. `Deputation” has a different connotation in service law and the dictionary meaning of the word `deputation” is of no help. In simple words `deputation” means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. State of Punjab v. Inder Singh, AIR 1998 SC 7: 1997 Supp (4) SCR 425: 1997(8) SCC 372: 1998(78) FLR 272: 1997(5) SLR 789: 1998(2) SLJ 113: 1998 Lab IC 133: 1998(1) LLN 74. 2. Employee on Deputation, His Legal Position — Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. Umapati Choudhary v. State of Bihar, AIR 1999 SC 1948: 1999(4) SCC 659: 1999(3) JT 627: 1999 LIC 1979: 1999(2) SLR 606 (SC); See also State of Punjab v. Inder Singh, 1997(8) SCC 372: AIR 1998 SC 7 An employee who is on deputation has no right to be absorbed in the service where he is working on deputation. However, in some cases it may depend upon

434


[R. 21

statutory rules to the contrary. If rules provide for absorption of employees on deputation then such employee has a right to be considered for absorption in accordance with the said rules. Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Ltd., 1999(5) SLR 203 (SC). The Government service is a matter of status and not of contract and merely because service of an employee are transferred, it does not mean that a contract has come into existence with the employer to whom services have been transferred or with whom he has been sent on deputation. Virtually he remains under the effective control of the lending authority and his legal position continues to be one more of status than of contract. Sohan Singh v. State of Punjab, AIR 1970 Pun 322 (FB); A.K. Srivastava v. State of U.P., 1980(1) SLR 369. The service could not be claimed by deputationist once he opted for permanent absorption in the department. Union of India v. Onkar Chand, AIR 1998 SC 945: 1998(9) SCC 299: 1998 (1) JT 336: 1998(2) SLR 296: 1998 Lab IC 971: 1998(2) SCJ 125. Unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle under lying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. Kunal Nanda v. Union of India, AIR 2000 SC 2076: 2000(5) SCC 362: 2000(6) JT 574: 2000(4) SLR 609 (SC); relying upon Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd., 1999(8) SCC 381: 1999(5) SLR 203 (SC). Period of deputation having being elapsed deputationist cannot claim to continue on deputation. Merely because the other deputationist had been allowed to continue, the deputationist cannot have any legal right to continue on deputation unless he is absorbed. P. Krishna Reddy v. Director, Mehdi Nawaj Jung Institute of Oncology and Regional Cancer Centre, Red Hills, Hyderabad, 2001(4) SLR 447 AP (DB). 3. Charge-sheet and Suspension when on Foreign Service by Parent Government — Government is competent to charge-sheet and suspend its officer while he is on foreign service. T.R. Sakhuja v. State of Punjab, 1973(2) SLR 599; Khemi Ram v. State of Punjab, AIR 1976 SC 1737: 1976(3) SCC 699: 1976 Lab IC 1139: 1976 SLJ 414 (SC): 1976(2) SLR 239. 4. Period of Sparing Services of Officers Lent — While sparing the service of any judicial officer to the Government it is open to the High Court to fix the period during which he may hold any executive post. At the end of that period, the Government is bound to allow him to go back to his parent department unless the High Court agrees to spare his services for some more time. State of Orissa v. Sudhansu Sekhar Misra, 1967(II) SCWR 845: AIR 1967 SC 647: 1968(2) SCJ 236. 5. Recall from Deputation — On the report of borrowing authority the appellants was recalled and posted to his substantive post. No reduction in rank.

R. 21]


435

Joginder Singh v. State of Punjab, 1969 Cur LJ 58. The employee validly repatriated on abolition of posts in borrowing department, can not claim to continue in service. Ram Ganga Command Area Development Authority v. Sheetal Kumar Vaish, 2003 (2) SLR 766 SC. 6. Recall from Foreign Service before Specified Period, Without Consent of Officer — State Government having lent the services of its officer on deputation to foreign service for a specified period can, before the expiry of the aforesaid period, legally recall the officer unilaterally without the consent of the officer concerned. Fateh Singh Chugha v. State of Punjab, AIR 1970 Pun 315; Sohan Singh v. State of Punjab, ILR (1970) 1 Pun 468: AIR 1970 Pun 322 (FB); Palikoith Shayama Prasad v. Chief Commr. Andaman Nicobar Islands, 1969 Lab IC 721: 73 Cal WN 939: 1970 SLR 161. 7. Reversion when on Deputation by Parent Department — A Government servant on deputation can be reverted after being recalled. The parent Government has no right to orders of his reversion and direct the other Government to post him on the lower post. Sudershan Sood v. State of Punjab, 1969 Cur LJ 846: 1969 SLR 715. 8. Reversions to Parent Office by Borrowing Authority Without Stigma — The petitioner was on deputation. He was sent back to his parent officer as he lost confidence and was not found to be suitable for the job. There was nothing in the order whereby any stigma was cast upon him. Held, the impugned order cannot be said to entail evil consequences and the lack of an enquiry would not stamp it with infirmity or illegality. Nau Nihal Singh v. Union of India, 1971 Lab IC 1267: 1971(1) SLR 566 Delhi; S.P. Vasudeva v. State of Haryana, AIR 1975 SC 2292: 1976(2) SCR 184: 1976(1) SCC 236: 1975 Lab IC 1748: 1975(2) SLR 740: 1976 SLJ 271; Kalam Dass v. Chief Electoral Officer, 1977(1) SLR 726. The reversion to the parent department does not entail any punishment to a Government servant. The provisions of Article 311 are not attracted. Gita Ram Gupta v. Union of India, 1979 SLJ 727. 9. Reversion by Borrowing Authority as Punishment — The appellant was reverted neither because of temporary post was abolished nor because he was found unsuitable to continue. The parent department also did not want him back. The order of reversion was ed in the nature of punishment. Held Article 311 will be attracted. K.H. Phadnis v. State of Maharashtra, 1971(1) SCWR 532: AIR 1971 SC 998: 1971 Supp SCR 118: 1971(1) SCC 790: 1971(2) SLR 345: 1971 Lab IC 721: 1973(1) SCJ 420; C. Thiravian Pillai v. State of Kerala, 1976(2) SLR 395. 10. Appointment Temporarily which could be Terminated by 15 days Notice: Whether Notice Necessary for Reversion to Parent Department — Respondent, a permanent employee of office of L.R. Punjab was appointed as temporary A.S.O. in Government of India on and conditions that his services may be terminated on 15 day”s notice. Subsequently he was appointed S.O. again in a temporary capacity. By an Officer order he was asked to hand over charge of his office and report for duty to L.R., Punjab immediately. The 15 days prior notice was not required as neither such term appears from the letter of appointment as S.O. nor there is anything to show that and conditions as A.S.O. would continue to apply to him as

436


[R. 21

S.O. Union of India v. Agya Ram, AIR 1977 SC 585: 1977(1) SCC 130: 1977 Lab IC 234: 1977(2) LLN 117: 1977(1) LLN 210: 1976(2) SLR 771. 11. Termination while on deputation— Temporary employee appointed for two months sent on deputation. Extension of service by the borrowing department and thereafter dispensing with the services on the ground that he was only on deputation, held to be illegal. Urban Improvement Trust v. Labour Court, 2003 (1) SLR 222 Raj.

Rules 20(1) and 21(1) 12. Other Authority — The expression “other authority” occurring in Rule 20 would embrace within its ambit such a body corporate as the Food Corporation of India. R.B. Varma v. Food Corporation of India, 1973 SLJ 109: 1972 SLR 751. On transfer of an employee to Food Corporation under Section 12-A of Food Corporation Act, the employee becomes an employee of the Food Corporation and no link whatsoever of such a transferred employee is left with his parent department. His service cannot be replaced at the disposal of his previous parent department under Rule 20. Rule 20 is applicable to the cases of deputationists only. A. Ahad v. Union of India, 1977(1) SLR 147. 13. Suspension by Borrowing Authority — The borrowing authority exercised the powers of the appointing authority for the purpose of placing under suspension the Government servants whose services are lent to it but that would not make the order of the borrowing authority as one ed by the appointing authority. R.B. Varma v. Food Corporation of India, 1973 SLJ 109: 1972 SLR 751 All. 14. Disciplinary power of borrowing authority — The office orders placing the control over the entire staff on deputation, to the Officer of the borrowing department. It was held that the disciplinary action by such authority was valid. State of U.P. v. Ram Nareshilal, 1970 (3) SCC 173: 1970 SLR 819. 15. Requirement of “Information” under Proviso to Sub-rule (1) of Rule 20 — All that the borrowing authority is required to do is to inform the department which lend the services of the Government servant that the Government servant has been placed under suspension, and in the event of disciplinary proceedings being commenced against him of the circumstances leading to the commencement of such proceedings. The proviso does not require that the borrowing department, before ing an order of suspension or before the commencement of the disciplinary proceedings should inform the parent department either that a suspension order is going to be ed or that disciplinary proceedings are proposed to be commenced against the Government servant. The requirement of information being given to the parent department is not a condition precedent to the ing of an order of suspension or to the commencement of disciplinary proceedings against him. On information being received by the parent department of the ing of an order of suspension of a Government servant whose services had been lend, or of commencement of disciplinary proceedings, it has no authority to recall the suspension order or to quash the proceedings which have been commenced by the department with which his services are on loan. Disregard of the requirement of the proviso directing the sending of information does not tender either a

R. 21]


437

suspension order or a disciplinary proceeding already commenced illegal or void. Ramadhar Singh v. Superintendent of Central Excise, 1979 LLJ 651 All.

Rule 20(2) and Rule 21(2) 16. Imposing of Penalty — Rules 20(2) and 21(2) deal with the power to impose the penalties referred to therein. If the penalty to be imposed is one of the major penalties the power to impose such penalty shall lie only with the lending authority. If the borrowing authority considers that the major punishment is called for after completion of the enquiry, the person concerned shall be reverted to the lending authority for such action as that authority may consider necessary. But, in the case of punishments, other than major punishments, the borrowing authority itself can impose those punishments, the only limitation being that the lending authority should be consulted before imposing any such penalty. Khumukcham Chitrasen Singh v. Director of Industries, Manipur, AIR 1969 Manipur 36; Amar Singh v. State of Haryana, 1972 Cur LJ 109; A.K. Srivastava v. State of U.P., 1980(1) SLR 369. 17. Jurisdiction of Borrowing Authority to Institute Disciplinary Proceeding After Reversion of Person to Parent Department — Petitioner was an Assistant Public Prosecutor and was appointed as temporary Judicial Second Class Magistrate by transfer. On receipt of certain complaints against him when he was serving as Judicial Second Class Magistrate, High Court directed his reversion to his parent department and a departmental enquiry to be conducted against him. Petitioner objected to the enquiry on the ground that he has already been reverted to his parent department. Held, the High Court has got jurisdiction to disciplinary proceedings, hold enquiry and give a finding even in respect of a person who has already been reverted provided the allegations were in respect of his work and conduct before such reversion. Petition was dismissed. T.S. Kannan v. High Court of Judicature of T.N., 1982 Lab IC 1822. 18. Delegation of Power of Dismissal — Whether a person has a lien in one department or in other department, the Government is entitled, subject to the provisions of Article 311(1), to delegate power of dismissal to any officer. If powers are so conferred to dismiss persons on deputation, there is nothing wrong in it. State of U.P. v. Ram Naresh Lall, AIR 1970 SC 1263; Ram Naresh Lal v. State of U.P., AIR 1967 All 384 Reversed.

438


[R. 23

PART VII

APPEALS ORDERS AGAINST WHICH NO APPEAL LIES

22.

Orders against which no appeal lies — Notwithstanding anything contained in this Part, no appeal shall lie against:— (i)

any order made by the President;

(ii)

any order of an interlocutory nature or of the nature of [step-in-aid of] the final disposal of a disciplinary proceeding, other than an order of suspension; 1

(iii)

any order ed by an inquiring authority in the course of an inquiry under Rule 14. R. 23

ORDERS AGAINST WHICH APPEAL LIES

23.

Orders against which appeal lies — Subject to the provisions of Rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely:—

1

2

(i)

an order of suspension made or deemed to have been made under Rule 10;

(ii)

an order imposing any of the penalties specified in Rule 11, whether made by the disciplinary authority or by any appellate or 2[revising] authority;

(iii)

an order enhancing any penalty, imposed under Rule 11;

(iv)

an order which— (a)

denies or varies of his disadvantage his pay, allowances, pension or other conditions of service as regulated by rules or by agreement; or

(b)

interprets to his disadvantage the provisions of any such rule or agreement;

Subtituted by Notification No. 11012/8/94-Estt (A), dated 02-01-1996, for the words “step-in-aid/or”. Substituted for the word “reviewing” vide Notification No. 11012/15/84 Estt. (A), dated 05-07-1985.

APPEALS

R. 23]

(v)

439

an order— (a)

stopping him at the efficiency bar in the time-scale of pay on the ground of his unfitness to cross the bar;

(b)

reverting him while officiating in a higher service, grade or post, to a lower service, grade or post, otherwise than as a penalty;

(c)

reducing or withholding the pension or denying the maximum pension issible to him under the rules;

(d)

determining the subsistence and other allowances to be paid to him for the period of suspension or for the period during which he is deemed to be under suspension or for any portion thereof;

(e)

determining his pay and allowances —

(i)

for the period of suspension, or

(ii)

for the period from the date of his dismissal, removal, or compulsory retirement from service, or from the date of his reduction to a lower service, grade, post, time-scale or stage in a time-scale of pay, to the date of his reinstatement or restoration to his service, grade or post; or

(f)

determining whether or not the period from the date of his suspension or from the date of his dismissal, removal, compulsory retirement or reduction to a lower service, grade, post, time-scale or pay or stage in a time-scale of pay to the date of his reinstatement or restoration to his service, grade or post shall be treated as a period spent on duty for any purpose.

Explanation:— In this rule— (i)

the expression “Government servant” includes a person who has ceased to be in the Government service;

440


(ii)

[R. 23

the expression “pension” includes additional pension, gratuity and any other retirement benefits.


Right of appeal, a statutory right .................................................................................... 440

2.

Application of mind by appellate authority .................................................................... 440

3.

Whether statutory remedy debars employee from invoking extra-ordinary jurisdiction of High Court under Article 226 .................................................................................... 440

4.

Exercise of disciplinary powers by Appellate Authority ................................................ 441

5.

When appeal not competent ........................................................................................... 442

6.

Supersession in matter of promotion .............................................................................. 442

7.

Warning or censure — Appeal lies ................................................................................ 442

8.

Explanation (i) is restricted for giving right to prefer appeal ......................................... 442

1. Right of Appeal, Statutory Right — Right of appeal is indeed a statutory right and does not exist unless it is specifically conferred by law. State of Haryana v. Baldev Krishna Sharma, 1970 SLR 500. See also N. Arunugam v. Union of India, 1994(7) SLR 77 (CAT Madras). Under the rules there is only one right of appeal. The second appeal is merely a representation. Chattar Singh v. Deputy Commissioner, Simla, 1982(1) SLR 163. A transfer order is appealable. Without exhausting the remedy of appeal, the officer transferred can not approach the CAT. V.B. Gupta v. Union of India, 1990(14) ATC 333 (CAT New Delhi). Where suspension order is ed on behalf of the President of India — (a) no appeal against it is maintainable, (b) but only review is permissible. Rajendra Janko v. Union of India, 1988(4) SLR 822 (CAT Jabalpur). 2. Application of mind by appellate authority — Appellate order ed without application of mind and merely repeating order of disciplinary authority cannot be sustained. Sujit Kumar v. Union of India, 1989(2) SLR 2 (CAT Calcutta). Order ed by Disciplinary Authority for recovery of loss from delinquent after disciplinary proceeding and dismissal from service. Appeal dismissed by Appellate Authority by a non-speaking order. Held that the order of Appellate Authority was illegal and accordingly it was set aside and remanded for reconsideration. S. Ramanathan v. Chief Judicial Magistrate, 2001(5) JT 494: 2001(4) SLT 473. 3. Whether Statutory Remedy Debars Employee from Invoking Extraordinary Jurisdiction of High Court under Article 226 or Tribunal under

R. 23]

APPEALS

441

istrative Tribunals Act, 1985 — Though existence of alternate remedy of appeal does not oust the jurisdiction of High Court under article 226 of the Constitution yet declining to entertain the petition by High Court due to existence of alternate remedy is not improper. Shashi Gaur v. N.C.T. of Delhi, 2000 (5) SLR 248 SC. Employee can file writ, (1) when there is a complete lack of jurisdiction in the office or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been ed in violation of the principles of natural justice, or (3) where the petitioner under the circumstances, felt that he was not likely to get the relief from the appellate authority. M.R. Arjuna v. Union of India, 1971(1) SLR 40 Raj. A person who proposes to seek redress from High Court in respect of some alleged violation of the conditions of service or some justice which he has been made to suffer in relation to his official career, can approach High Court under Article 226 of the Constitution without obtaining the previous permission of any one. The presentation of that petition need not be preceded by the approval of any official superior of the Government servant. Nor can a rule prohibiting the presentation of a writ petition is that way except with the previous approval of the official superior, be made by any one under any of the statutory provisions. The jurisdiction of High Court is what may be invoked by a civil servant unimpeded by any restriction, in the same way in which any other litigant can invoke it. V.K. Parameswaran v. Union of India, 1982 Lab IC 383: 1982(1) SLJ 516 Kar. A person, who is aggrieved by an order of the Commissioner, cannot be permitted to abandon resort to the statutory remedy of appeal and to invoke the constitutional jurisdiction of this Court. Held that, despite the existence of an alternative legal remedy, the High Court may interfere in favour of a petitioner under Article 227 of the Constitution, but the case in question held to be certainly not one of such extraordinary cases. Cement Corporation of India Ltd., Charkhi Dadri v. Chander Kala, 1999(5) SLR 92 P&H. Ordinarily when statutory remedy is available to an aggrieved employee, the Tribunal should refuse to entertain an application as provided in section 20 (1) of istrative Tribunals Act, 1985. G.K. Vaghela v. Union of India, 2000 (2) SLR 307Guj (DB). 4. Exercise of disciplinary powers by Appellate Authority— Services terminated not by the disciplinary authority but by Appellate authority with no provision for review or revision against the order of the appellate authority thus right of appeal was denied to the delinquent. Though employee was entitled for reinstatement and back wages in view of decision of Supreme Court in Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank,. JT 1995(2) SC 74 as the order of punishment gets vitiated, held that the employee would not be entitled to any back wage from the date of termination till the date of decision excepting the sum of Rs. 50,000/which has already been paid to him. Electronics Corporation of India v. G. Muralidhar, 2001(3) JT 549: 2001(1) LLJ 1343: 2001(4) SLT 286 Order of removal ed by the Disciplinary Authority was in conformity with law. The then Chairman-cum-Managing Director of the Company acted as a

442


[R. 24

Disciplinary Authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provisions, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. Amar Nath Chowdhury v. Braithwaite and Company Ltd., AIR 2002 SC 678: 2002(2) SCC 290: 2002(1) LLJ 1048: 2002(1) SCJ 268. [Financial Commer. (Taxation) Punjab v. Harbhajan Singh, 1996(9) SCC 281 relied on.] 5. When Appeal not Competent — Where no appeal was competent, it could be dismissed in limine. Nalini Ranjan Sharma v. State of Haryana, 1973(2) SLR 143. 6. Supersession in Matter of Promotion — Such an order falls under Rule 23(iv) and appeal lies. The old post is abolished and another candidate is appointed in newly created post. Mahesh Kumar Mudgil v. State of U.P., 1998(1) SCJ 266. 7. Warning or Censure: Appeal Lies — It is not form of the order or the word that is used or the nomenclature that is given that matters but really the substance of it. Order showing petitioner guilty of misconduct and to contend that it merely istered warning is unconvincing. Such a “warning” is “censure”. Appeal lies against the order. Nadhan Singh v. Union of India, 1969 SLR 24. 8. Explanation (i) is Restricted for Giving Right to Prefer Appeal — The explanation is restricted for giving the dismissed servant a right to prefer an appeal. C.R. Bansi v. State of Maharashtra, AIR 1971 SC 786: 1971(3) SCR 236: 1970(3) SCC 537: 1971 Crl LJ 662: 1971 SCC(Cr) 143: 1971 CAR 105.

APPELLATE AUTHORITY R. 24

24.

Appellate Authority — (1) A Government servant, including a person who has ceased to be in Government service, may prefer an appeal against all or any of the orders specified in Rule 23 to the authority specified in this behalf either in the Schedule or by a general or special order of the President or, where no such authority is specified— (i) where such Government servant is or was a member of a Central Service, Group “A” or Group B or holder of a Central Civil Post, Group A or Group B — (a)

to the appointing authority, where the order appealed against is made by an authority subordinate to it; or

APPEALS

R. 24]

(b)

443

to the President where such order is made by any other authority;

(ii) where such Government servant is or was a member of a Central Civil Service, Class III or Class IV or holder of a Central Civil Post, Class III or Class IV to the authority to which the authority making the order appealed against is immediately subordinate. (2) Notwithstanding anything contained in sub-rule (1) — (i)

an appeal against an order in a common proceeding held under Rule 18 shall lie to the authority to which the authority functioning as the disciplinary authority for the purpose of that proceeding is immediately subordinate:

Provided that where such authority is subordinate to the President in respect of a Government servant for whom President is the appellate authority in of sub-clause (b) of clause (i) of sub-rule (1), the appeal shall lie to the President. (ii)

where the person who made the order appealed against becomes, by virtue of his subsequent appointment or otherwise, the appellate authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate.

(3) A Government servant may prefer an appeal against an order imposing any of the penalties specified in Rule 11 to the President, where no such appeal lies to him under sub-rule (1) or sub-rule (2), if such penalty is imposed by any authority other than the President, on such Government servant in respect of his activities connected with his work as an office-bearer of an association, federation, or union, participating in the t Consultation and Compulsory Arbitration Scheme.

COMMENTARY SYNOPSIS 1. Appellate Authority must inspire confidence ................................................................... 444 2. Recording of reasons ........................................................................................................ 444 3. Disposal of appeal to President by Minister ..................................................................... 444

444


[R. 25

1. Appellate Authority must Inspire Confidence — Merely providing an appeal by itself may not be very reassuring but the appellate authority must inspire confidence. Lt. Col. Prithi Pal Singh Bedi v. Union of India, 1982(2) SLJ 582 (SC). 2. Recording of reasons— The appellate authority”s decision cannot be said to be vitiated merely because reasons recorded in the file or the gist thereof are not incorporated in the impugned order. At best, it is a mere irregularity. Ch. Nagender v. Registrar (Management) High Court of A.P., 1999(5) SLR 243 AP (DB). 3. Disposal of Appeal to President by Minister — Disposal of appeal to the President by the Minister is a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister. Union of India v. Sripati Ranjan, 1975(2) SLR 697; T. Jayant v. Union of India, 1980 SLJ 438: 1980(2) SLR 507. Appellate authority must decide all points raised in the appeal. If it does not do so, the order is not sustainable. N.K. Varadarajan v. Senior Deputy Director General, 1991(1) SLR 667, 668, 670 para 56 (CAT Bangalore). Appellate authority must apply its mind and give reasons for upholding the order of the disciplinary authority. Merely saying that the procedure prescribed in the rules has been complied with that of the findings are justified and the penalty imposed is adequate is not enough. P. Muniswamy v. Union of India, 1988(7) SLR 137, 139, para 4 (CAT Madras).

PERIOD OF LIMITATION OF APPEALS R. 25

25.

Period of limitation of appeals — No appeal preferred under this part shall be entertained unless such appeal is preferred within a period of forty five-days from the date on which a copy of the order appealed against is delivered to the appellant: Provided that the appellate authority may entertain the appeal after the expiry of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.


Appellate Authority Rejected Appeal on Grounds of Limitation ................................... 444

2.

Sufficient Cause ............................................................................................................. 445

1. Appellate Authority Rejected Appeal on Grounds of Limitation: Power of High Court under Article 226 — Where the appellate authority rejected the memorandum of appeal on ground of limitation, held, so long as the discretionary

APPEALS

R. 25]

445

power vested in the proper authority has been exercised by proper application of mind, High Court under Article 226 of Constitution cannot interfere with that discretionary exercise of power. V. Duragappa v. Chief Engineer and Disciplinary Authority, K.E.B., AIR 1980 Ker 167. See also Union of India v. Jeet Singh, 1987(1) SLR 337 All. 2. Sufficient Cause— Supreme Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353: 1987(3) SCC 107: 1987(2) SCR 387: 1988(19) ECR 565: 1987(167) ITR 471: 1987(28) ELT 185: 1987(62) Comp Cas 370: 1987(66) STC 228 held that the expression “sufficient cause” employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life purpose for the existence of the institution of courts. It was further observed that a liberal approach is adopted on principle as it is realised that: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3.

“Every day”s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour”s delay. every second”s delay ? The doctrine must be applied in a rational common sense pragmatic manner.

4.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5.

There is no presumption that delay is occasioned deliberately, or on of culpable negligence, or on of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6.

It must be grasped that judiciary is respected not on of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

It is submitted that the same principles should apply in dealing with condonation of delay in filing the appeal under Rule 25. In fact Supreme Court in a subsequent case relying on above observations has noted the effect of dismissal of appeal on technical ground of limitation, in these words— “Dismissing the appeals on technical grounds of limitation would not, in any way, advance the interests of justice but ittedly, result in failure of justice as the impugned judgements are likely to affect not only the parties before us, but hundreds of other

446


[R. 26

persons who are stated to be senior than the respondents. The technicalities of law cannot prevent us from doing substantial justice and undoing the illegalities perpetuated on the basis of the impugned judgements. However, while deciding the petitions, the reliefs in the case can appropriately be moulded which may not amount to unsettle the settled rights of the parties on the basis of judicial pronouncements made by the Courts regarding which the State is shown to have been careless and negligent.” See State of Bihar v. Kameshwar Prasad Singh, AIR 2000 SC 2306: 2000(9) SCC 94: 2000(5) JT 389: 2000 Lab IC 2379: 2000(4) SLR 8 (SC). R. 26

26. Form and contents of appeal — (1) Every person preferring an appeal shall do so separately and in his own name. (2) The appeal shall be presented to the authority to whom the appeal lies, a copy being forwarded by the appellant to the authority which made the order appealed against. It shall contain all material statements and arguments on which the appellate relies, shall not contain any disrespectful or improper language, and shall be complete in itself. (3) The authority which made the order appealed against shall, on receipt of a copy of the appeal, forward the same with its comments thereon together with the relevant records to the appellate authority without any avoidable delay, and without waiting for any direction from the appellate authority.


Competent authority to accept all appeals in case order appealed against is appealable ...................................................................................................................... 446

2.

Punishing authority not to make such comments which may influence mind of appellate authority ......................................................................................................... 447

1. Competent Authority to Accept All Appeals in Case Order Appealed Against is appealable — The departmental appeals have been intended to be availed of by all civil servants who have been punished and the competent authority should entertain the appeals in all such cases. Laxmiben Girdhari Lal Patel v. State of Gujarat, 1971(2) SLR 695. See also M.P. Roy v. Union of India, 1990(3) SLR 339 (CAT Patna); Ram Lagan v. Union of India, 1990(12) ATC 257 (Calcutta).

APPEALS

R. 27]

447

2. Punishing authority not to make such comments which may influence mind of appellate authority — It is not competent for the authority which made the order appealed against to make such comments or remarks which might tend to influence the mind of the appellate authority. Union of India v. B.S. Mishra, 1973(2) SLR 430 (Raj).

CONSIDERATION OF APPEAL R. 27

27.

Consideration of appeal — (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 10 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider— (a)

whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

(b)

whether the findings of the disciplinary authority are warranted by the evidence on the record; and

(c)

whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;

and orders— (i)

confirming, enhancing, reducing, or setting aside the penalty; or

(ii)

remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of these cases;

Provided that— (i)

the Commission shall be consulted in all cases where such consultation is necessary;

448


[R. 27

(ii)

if such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Rule 11 and an inquiry under Rule 14 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 19, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 14 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it may deem fit;

(iii)

if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clause (v) to (ix) of Rule 11 and an inquiry under Rule 14 has already been held in the case, the appellate authority shall, make such orders as it may deem fit 1[after the appellate has been given a reasonable opportunity of making a representation against the proposed penalty]; or

(iv)

no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, in accordance with the provisions of Rule 16, of making a representation against such enhanced penalty.

(3) In an appeal against any other order specified in Rule 23, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable.

COMMENTARY SYNOPSIS

1

1.

Appellate authority to deal with points raised and to speaking order ..................... 449

2.

Appellate authority to follow principles of natural justice ............................................. 449

3.

Appellate authority to give reasons in the order ............................................................. 452

4.

Appellate authority whether to give reason when he dismisses the appeal .................... 452

Inserted by Notification No. 11012/8/94-Estt. (A) dated 02-01-1996.

R. 27]

APPEALS

5.

Appeal to State Government - Authority must give reasons .......................................... 453

6.

Order of appellate authority should be a speaking order ................................................ 453

7.

Personal hearing - Opportunity for by appellate authority ............................................. 454

8.

Expression of opinion by appellate authority before deciding appeal ............................ 454

9.

Case independently considered ...................................................................................... 454

449

10. Appellate authority to apply mind independently .......................................................... 454 11. Evidence destroyed in fire: Orders based on enquiry report quashed ............................. 455 12. Enhancement of penalty ................................................................................................. 455 13. Appeal against minor penalty imposed under Rule 16 - Whether appellate authority can enhance the penalty to a major penalty .................................................................... 455 14. Appellate authority to consider question of quantum of penalty .................................... 455 15. Appellate authority ordering a de nova enquiry - Order of dismissal to be deemed quashed .......................................................................................................................... 455 16. Confirmation of a void order in appeal .......................................................................... 456 17. Minor irregularity in conducting enquiry ...................................................................... 456 18. Hearing of appeal to the President.................................................................................. 456 19. Punishing authority not to make such comments which may influence mind of appellate authority .......................................................................................................... 456

CONSIDERATION OF APPEAL 1. Appellate Authority to Deal with Points Raised and to Speaking Order — A mandatory and statutory duty has been cast on the appellate authority to consider the appeal and deal with the points raised and a speaking order thereon. Order of appellate authority is to be quashed if he has not ed order in accordance with the requirements of the Rule. Jagan Nath v. Quarter Master General, 1971(1) SLR 810 (Delhi); Kripal Singh v. State of Rajasthan, 1980(2) SLR 717: 1980 SLJ 598. See also T.T. Vinsalarajan v. Kerala, Public Service Commission, 1988(1) SLR 523 (Ker.). Order ed by Disciplinary Authority for recovery of loss from delinquent after disciplinary proceeding and dismissal from service. Appeal dismissed by Appellate Authority by a non-speaking order. Held that the order of Appellate Authority was illegal and accordingly it was set aside and remanded for reconsideration. S. Ramanathan v. Chief Judicial Magistrate, 2001(5) JT 494: 2001(4) SLT 473. 2. Appellate Authority to Follow Principles of Natural Justice — (i) The appellate authority has to follow the principles of natural justice. It has not only to do justice, but should appear to do justice, and should not allow the opinion of other persons to operate on his mind, but it has to form an independent opinion of its own without looking to the opinion regarding the merits expressed by others. Union of India v. B.S. Misra, 1973(2) SLR 430 (Raj); B.C. Thangkhiew v. Union of India, 1973(2) SLR 445: 1973 SLJ 1021; Nathaniel Ghosh v. Union Territory of Arunachal Pradesh,

450


[R. 27

1980(2) SLR 733. See also N. Ramulu v. Scientific Advisor to Minister of Defence, 1994(4) SLR 534 (CAT Hyderabad). (ii) Natural justice is a vary elastic term. Its rules very from tribunal to tribunal. The question whether or not any rules of natural justice had been contravened should be decided not under any preconceived notions, but in the light of the statutory rules and provisions. Nagendra Nath Bora v. Commissioner of Hill Division, AIR 1958 SC 398: 1958 SCJ 798. In a case decided by the Central istrative Tribunal, Guwahati, Bankim Chaudhary v. Union of India, 1991(16) ATC 658, it has been held that where the Inquiry Officer finds some of the charges partly true, one charge not proved and other wholly proved and the punishing authority without giving reasons, imposes punishment on the ground that the Inquiry Officer had held all the charges proved, the punishment is bad and a non-speaking order of the appellate authority upholding such punishment is also bad. Bankim Chaudhary v. Union of India, 1991(16) ATC 658. The case related to employees of the Indian Council of Agricultural Research. Appellate authority must not only give bearing to the Government servant concerned but must also give reasons. Bankim Chaudhary v. Union of India, 1991(16) ATC 658. The Tribunal referred R.P. Bhatt v. Union of India, AIR 1986 SC 1040: 1985 Supp(1) SCR 947: 1986(2) SCC 651: 1986 Lab IC 790: 1986 ATC 37: 1985(3) SLR 742: 1986(1) SLR 470 & 775: 1986(1) SLJ 383: 1986(1) ATR 149: 1986(52) FLR 354, as to the meaning of the word “consider” in Rule 27, CCS Rules. Further, it quoted from Ram Chander v. Union of India, AIR 1986 SC 1173: 1986(2) SCR 980: 1986(3) SCC 103: 1986 Lab IC 885: 1986(1) ATC 47: 1986(2) LLJ 34: 1986(53) FLR 191: 1986(2) SLJ 249: 1986(2) SLR 608: 1986(2) ATR 252, the following age in a case relating to rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968:—. “Such being the legal position, it is of utmost importance after the Forty-second Amendment as interpreted by the majority in Union of India v. Tulsiram Patel, 1985(3) SCC 398: 1985 SCC (L&S) 672: AIR 1985 SC 1416: 1985 Supp(2) SCR 131: 1985(3) SCC 398: 1985(3) Comp LJ 45: 1985(2) SLR 576: 1985(2) SLJ 145, that the appellate authority must not only give a hearing to the Government servant concerned, but also a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasise that the reasoned decisions by Tribunals, such as Railway Board”s present case will promote public confidence in the istrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be ed on appeal. Considerations of fair play and justice also require that such a personal hearing should be given”. Appellate authority must give personal hearing, even if an applicant did not ask for it. Ram Singh v. Union of India, 1988(6) SLR 218, 233 para 7 (CAT Chandigarh), Ram Chander v. Union of India, ATR 1986(2) SC 252. Proceedings under Central Civil Services (Pension) Rules, 1972 are quasi judicial in nature. Appellate authority is under obligation to record reasons, after

APPEALS

R. 27]

451

dismissing the appeal. To dismiss the appeal by saying “there is no merit in the appeal” is no compliance with the rules. Such order is illegal. M. Kali Muthu v. Commandant, Defence Services Staff College, Wellington, 1988(4) SLR 725 (CAT Madras). The appellate authority should not satisfy itself merely about the propriety of the punishment. It must also consider whether the proper procedure has been followed and if not whether there has been any failure of justice. It must also consider whether the findings of the disciplinary authority are warranted by the evidence. [R.P. Bhatt v. Union of India, 1986(1) SLR 470 (SC); Dr. Anil Kapur v. CSIR, 1990(4) SLR 378 (CAT Chandigarh). Appellate authority is competent to remand case for de nova proceedings to the disciplinary authority from the stage of cross-examination of Prosecution Witness No. 1. This is not prohibited by Rule 126, P&T Manual or by Rule 27(2)(c), CCS (CCA) Rules. What Rule 27(2)(c) prohibits is an order which both, confirms or alters the penalty and remands the case J. Shamdev v. Union of India, 1990(3) ATC 85 (Hyderabad). The word “consider” in Rule 27(2) of the CCS (CCA) Rules casts on the appellate authority an obligation to give reasons by applying its mind. A mechanical reproduction of the provisions of the rule without marshalling the evidence to sustain the finding of the disciplinary authority will not cure the legal flaw in the appellate order. R.P. Bhatt v. Union of India, 1986(1) SLR 470 (SC); Ram Chandra v. Union of India, ATR 1986(2) SC 252: 1986(2) SLR 608; C. Sukumuran v. Director General, ICAR, 1990(7) SLR 249 CAT (Ern). Appellate authority hearing the appeal against imposition of penalty imposed as a result of disciplinary proceedings is under obligation to a speaking order while dismissing the appeal. Failure to do so makes the order illegal. J.C. Mehta, Supdt. Engr., P.G.I., Chandigarh v. Post Graduate Institute of Medical Education and Research, Chandigarh, 1988(4) SLR 768 (P&H). It is the duty of the appellate authority: (a)

to discuss thoroughly the procedural aspects as well as the justness of the findings of the disciplinary authority with reference to the issible evidence;

(b)

to discuss the point raised in the appeal; and.

(c)

to give a definite conclusion that (i) the charge levelled against the employee has been established and (ii) that the penalty is appropriate and does not require enhancement or interference.

H.P. Kahali v. Union of India, 1989(7) SLR 786, 791 (CAT Calcutta). Where the disciplinary authority imposed punishment of reduction to lower stage for one year and the appellate authority enhanced the punishment and ordered dismissal by a non-speaking and unreasonable order, the order is illegal. Sushil Shekhar Mondal v. Union of India, 1988(7) SLR 164 (CAT Calcutta).

452


[R. 27

3. Appellate Authority to Give Reasons in the Order — Rule 27(2) obligates an appellate authority to follow the provisions of clauses (a), (b) and (c). The expression “shall consider” and “ order” are enough to indicate the intention of law that the authority must give reasons. The authority is bound to give reasons where the validity of the decision is challenged by a delinquent that (a) there are procedural illegalities, and/or (b) the findings are not warranted by the evidence on record, and/or (c) the penalty is much too severe. The High Courts of this country and the Supreme Court have time and again emphasised that the appellate authorities must give reasons and there should be some discussion of the evidence on record. An appellate authority has a legal duty to deliberate about and ponder over; carefully examine the case of the appellant on merit and adjudge it before confirming, enhancing, reducing or setting aside the penalty. Nathaniel Ghosh v. Union Territory of Arunachal Pradesh, 1980(2) SLR 733; Dr. Gopeswar Dutta v. Union of India, 1982(1) SCR 857: 1982(2) SLJ 207. The appellate authority has to consider all the relevant factors while disposing of an appeal i.e. the relevant factors as set out in clause (a), (b) & (c) of Rule 27(2) and a decision of Appellate Authority merely considering clause (c) about the adequacy of penalty imposed, does not meet the requirement of the provision. The Supreme Court has however observed that the proceedings no doubt are quasi judicial in nature but having regard to the manner in which these enquiries are conducted, no obligation can be imposed upon State Government to record reasons. R.P. Bhatt v. Union of India, AIR 1986 SC 1040: 1986 (1) SLR 470: 1986 (1) SLJ 383. similar are the observations of High Court of Punjab & Haryana in respect of Rules as applicable in Punjab and which are pari material with this rule. See Municipal Corporation, Ludhiana v. Surinder Kumar, 2000 (5) SLR 649 P&H (DB). 4. Appellate Authority Whether to Give Reasons when he Dismisses the Appeal — If the appellate authority dismisses the appeal he need not give more reasons than his agreement with the order of the punishing authority as the order of punishing authority would be containing the reasons but if some material which was not present before the punishing authority is urged before the appellate authority then he would have to give some reasons as to what he thought of the new material brought before him even though he may simply agree with the punishing authority as to its conclusion on the material already seen by him. Director of Postal Services v. Daya Nand, 1972 SLR 325 (FB) (Delhi). In this case the reasons for imposing the punishment were the reasons on which the conduct of the employee led to his conviction by the Criminal Court. The view of other High Courts, however, is that the order of appellate authority in which reasons for upholding the order of the original authority are not recorded, is liable to be quashed. Irukuvaijula Subhrahamnyam v. Scretary, 1968 SLR 812; Mohinder Singh v. State of Punjab, 1968 Cur LJ 476; Vijay Singh Yadava v. State of Haryana, 1971(1) SLR 720. The Lt. Governor of Arunachal Pradesh as appellate authority ed the impugned order which reads:— “The appeal is rejected”.

R. 27]

APPEALS

453

Held, “It is surprisingly bold order. How could so many live questions posed go unanswered? The order is as silent as the dead. The impugned order is invalid. The appellate authority has miserably failed to comply with the legal requirements of stating reasons in its order”. Nathaniel Ghosh v. Union Territory of Arunachal Pradesh, 1980(2) SLR 733. Where the order of appellate authority was in the following : “I have gone through the records of the case and find that the grounds of appeal put forward by Sri…… are not tenable. I have come to the conclusion that the findings of and the penalty imposed by the disciplinary authority are warranted by the evidence on record. I, therefore, reject the appeal of Sri………”, held, that the contents of Rule 27 have not been followed in ing the appellate order and the said order is quashed. Doraiswamy v. Union of India, 1980 SLJ 385 (Kar). Mr. Appellate Authority please note: “Absence of reasons multiply writ proceedings in courts, do not create unnecessary litigation between your subordinate and the Government”. The appellate authority’s decision cannot be said to be vitiated merely because reasons recorded in the file or the gist thereof are not incorporated in the impugned order. At best, it is a mere irregularity. Ch. Nagender v. Registrar (Management) High Court of A.P., 1999(5) SLR 243 AP (DB). 5. Appeal to State Government: Authority must give Reasons — Where from the material on the record it cannot be determined as to who considered the appeal addressed to the State Government and what was considered by the authority exercising power on behalf of the State Government, it was held that the practice of the executive authority dismissing statutory appeals against order which prima facie seriously prejudice the rights of the aggrieved part without giving reasons is a negation of the rule of law. Order quashed. Mahabir Prasad Santosh Kumar v. State of U.P., AIR 1970 SC 1302: 1971(1) SCR 201: 1970(1) SCC 764: 1970(1) SCWR 713: 1971(1) SCJ 256. 6. Order of Appellate Authority should be a Speaking Order — To understand the approach of the punishing authority and also the mind of the appellate authority and grounds on which the impugned orders have been ed, it is necessary that the order should be a speaking order and should give the grounds on which it has been ed. Guranditta Mal v. State of Haryana, 1967 Cur LJ 182: 1969 SLR 91; Mohinder Singh v. State of Punjab, 1968 Cur LJ 476: 1968 SLR 470; State of Gujarat v. Patel Raghav Nath, AIR 1969 SC 1297: 1970(1) SCR 335: 1969(2) SCC 187; Jagan Nath v. Quarter Master General, 1971(1) SLR 810; Cheda Lal Jha v. Union of India, 1973 SLJ 834; Madan Lal Sethee v. Union of India, 1979(3) SLR 93: 1975(2) SLR 286; Bhagwanti Devi v. State of Haryana, 1982(1) SLR 29. The order must be in conformity with the provisions of Rule 27. Kripal Singh v. State of Rajasthan, 1980 SLJ 598: 1980(2) SLR 717; S. Doraiswamy v. Union of India, 1980 SLJ 385 (Kar).

454


[R. 27

Appellate order must discuss the points raised in the appeal. A non-speaking order made without application of mind is not sustainable. T.D. Sathya Kumar v. Director, R & D Organisation, 1989(7) SLR 180 (CAT Bangalore). 7. Personal Hearing: Opportunity for by Appellate Authority — In Dharani Mohan Barman v. State of Assam, AIR 1963 Assam 183, it was held that normal right of an appellate to be heard in of his appeal, before the same is rejected, should prevail. In Girish Chandra Goswami v. A.K. Roy, AIR 1968 Assam 52, it was held that in a statutory appeal the parties must be given a hearing. Delhi and Gujarat High Courts, however, did not subscribe to the view of Assam High Court. In Bhagat Ram v. Union of India, 1968 DLT 495: AIR 1968 Delhi 269, It was held that nowhere in these Rules a personal hearing to the appellate is provided nor has any right been conferred on him to claim such a hearing. If the provisions of Article 311 of Constitution have been fully complied with there is no just occasion for a Government servant to raise any further grievance and to claim any further hearing. No opportunities beyond those prescribed by sub-clause (2) of Article 311 can be claimed by a Government servant. At the stage of appeal under the Rules it is a matter for the appellate authority to satisfy itself that the necessary provisions of law have been fully complied with and then after taking into consideration all the circumstances of the case such order as it deemed just and equitable. See also State of Gujarat v. Pagi Bhurabhai Rumalbhai, AIR 1969 Gujarat 260 and Madan Lal Sethee v. Union of India, 1975(2) SLR 286: 1979(3) SLR 93. Amarjit Singh v. Punjab Warehousing Corporation, 1991(1) SLR 30 (P&H). 8. Expression of Opinion by Appellate Authority before Deciding Appeal— Appellate authority long before dismissing the appeal made up his mind and expressed his opinion adverse to the petitioner. Hearing of appeal held nothing but farce. Mohinder Singh v. State of Punjab, 1968 Cur LJ 476. 9. Case Independently Considered — Even assuming that there was any defect in the enquiry proceedings, as the punishing authority and the appellate authority, have independently considered the matter and found the respondent guilty on the evidence on record, it must be held that in the circumstances of the case there has been no violation of the principles of natural justice when the order of dismissal was ed. State of Assam v. Mahendra Kumar Das, AIR 1970 SC 1255: 1970(2) SCJ 659. See also Ram Lagan v. Union of India, 1990(12) ATC 257 (Calcutta). 10. Appellate Authority to Apply Mind Independently — Where the appellate authority did not any order except initialling the notes put up by the office after the opinion from the Law Department had been obtained, held, this is not an independent order after application of his mind by the authority. This order is not sustainable. Municipal Committee v. State of H.P., 1979(2) SLR 171; Nathaniel Ghosh v. Union Territory of Arunachal Pradesh, 1980(2) SLR 733. See also M.P. Roy v. Union of India, 1990(3) SLR 339, (Cal Pat). (i) Law Department should not give their advice in such cases and it should be left to the Appellate Authority to apply his mind and to decide the appeal independently. The practice of giving notes by the office is also wrong as it prejudices the mind of Appellate Authority, who is a quasi judicial authority.

R. 27]

APPEALS

455

11. Evidence Destroyed in Fire: Based on Enquiry Report Quashed — Inquiry Officer found some of the charges established. The Disciplinary Authority issued a show cause notice proposing a penalty of compulsory retirement. The petitioner made a request to permit him to inspect the relevant file and record of the departmental enquiry which was refused. Thereafter, petitioner filed his reply. The Disciplinary Authority ed impugned order of compulsory retirement. The appeal filed by petitioner was rejected. The file of Inquiry Officer which contained the statements of witnesses had gutted before the show cause notice issued by the Disciplinary Authority. Held, since the Disciplinary Authority and the Appellate Authority had no material before them to come to independent finding, their orders were quashed being based on no evidence. Crattar Singh v. Deputy Commissioner, Simla, 1982(1) SLR 163 (HP). 12. Enhancement of Penalty — If the appellate authority wants to take into the charges on which the employee had been acquitted by the enquiry officer he should give a proper notice to the employee, intimating to him that those charges would also be considered and opportunity be afforded of explaining them. Narayan Misra v. State of Orissa, 1969(1) SCWR 829: 1969 SLJ 657. See also R.P. Bhalla v. Union of India, ATR 1986(1) CAT 149. 13. Appeal Against Minor Penalty Imposed under Rule 16: Whether Appellate Authority can Enhance the Penalty to a Major Penalty — The Appellate Authority, no doubt, has the power to enhance the penalty to one of the major penalties specified in clauses (v) to (ix) of Rule 11, in appropriate cases; but that certainly cannot be done without strictly following the procedure prescribed in that behalf in the Proviso (ii) to Rule 27(2) read with Rule 14 of the Rules. The Disciplinary Authority or the Appellate Authority, as the case may be, should caution the delinquent officer that enquiry under Rule 14 that was being conducted into the charges levelled against him might end in the imposition of one of the major penalties specified in clauses (v) to (ix) of Rule 11. P.K. Raghavan v. Senior Superintendent, R.M.S., 1980(3) SLR 213. 14. Appellate Authority to Consider Question of Quantum of Penalty — Sub-clause (c) of clause (2) of Rule 27 requires expressly, the appellate authority to consider “whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe” and orders — “confirming, enhancing, reducing or setting aside the penalty…….”, with an express statutory requirement like this, it would be necessary for an appellate authority to show that it was complied with. The order was quashed and the appellate authority was directed to consider the pleas of the petitioner in respect of the quantum of punishment and suitable orders. K.M. Agrahari v. Lt. Governor, Delhi istration, 1980(3) SLR 555: 1981(1) SLJ 216. 15. Appellate Authority Ordering a de nova Enquiry: Order of Dismissal to be Deemed Quashed — Appeal filed against the order of dismissal. Appellate authority remitted case for the de nova proceedings. It would be wrong to come to the conclusion that the original dismissal order would still survive after the order in appeal. Petitioner is entitled to the benefits following from the order in appeal and must be held to be deemed to be in service subject, however, to fresh enquiry in accordance with Rules. M.R. Subramanyam v. Commandant, 1980 SLJ 280: 1980(1) SLR 123.

456


[R. 28

16. Confirmation of a Void Order in Appeal — The rejection of appeal by a higher authority against dismissal is not equivalent to a dismissal by that authority. Where the original order is without jurisdiction and as such void and inoperative, the order ed on appeal could not cure the initial defect. Mysore State Road Transport v. Mirza Khasim Ali, 1977(1) SLR 237 (SC). 17. Minor Irregularity in Conducting Enquiry — Any minor irregularity in the matter of conducting the enquiry cannot vitiate a finding which is so obviously correct. State of U.P. v. Om Prakash Gupta, 1969 SLR 890: AIR 1970 SC 679: 1969(3) SCC 775: 1970 Lab IC 568. 18. Hearing of Appeal to the President — Disposal of the appeal by Minister is a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister. There is no question of delegation involved in such a matter. Any reference to the President under any rule made under Constitution must need be to the President as the Constitutional Head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers. Union of India v. Sripati Ranjan, AIR 1975 SC 1755: 1976(1) SCR 268: 1975(4) SCC 699: 1975 Lab IC 1221: 1976(1) SCJ 552: 1975 SLJ 759: 1975(2) SLR 697. 19. Punishing Authority not to Make such Comments which may Influence Mind of Appellate Authority — It is not competent for the authority which made the order appealed against to make such comments or remarks on the appeal which might tend to influence the mind of the appellate authority. Union of India v. B.S. Misra, 1973(2) SLR 430 Raj; Nathaniel Ghosh v. Union Territory of Arunachal Pradesh, 1980(2) SLR 733. R. 28

28. Implementation of orders in appeal — The authority which made the order appealed against shall give effect to the orders ed by the appellate authority. COMMENTARY Doctrine of merger— This section is based on doctrine of merger. The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The logic underlying the doctrine or merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order ed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - Whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order ed by the court, tribunal or the authority below. Kunhayammed v. State of Kerala,

R. 28]

APPEALS

457

AIR 2000 SC 2587: 2000 Supp (1) SCR 538: 2000(6) SCC 359: 2000(3) KLT 354: 2000(119) STC 505: 2000(245) ITR 360: 2000(97) FJR 213: 2001(129) ELT 11. Though loosely an expression merger of judgment, order or decision of a court or forum into the judgment, order or decision of a superior forum is often employed, as a general rule the judgment or order having been dealt with by a superior forum and having resulted in confirmation, reversal or modification, what merges is the operative part i.e., the mandate or decree issued by the Court which may have been expressed in positive or negative form. For example, take a case where the subordinate forum es an order and the same, having been dealt with by a superior forum, is confirmed for reasons different from the one assigned by the subordinate forum what would merge in the order of the superior forum is the operative part of the order and not the reasoning of the subordinate forum; otherwise there would be an apparent contradiction. However, in certain cases, the reasons for decision can also be said to have merged in the order of the superior court if the superior court has, while formulating its own judgment or order, either adopted or reiterated the reasoning, or recorded an empress approval of the reasoning, incorporated in the judgment or order the subordinate forum. The doctrine of merger is not of universal or unlimited application; the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid, shall have to be kept in view. S. Shanmugavel Nadar v. State of Tamil Nadu, AIR 2002 SC 3484: 2002(8) SCC 361: 2002(4) SCJ 386: 2002(2) RCR 404. Since the above doctrine of merger is not of universal application, the present Rule 28 has been incorporated to ensure the application of this doctrine expressly. Accordingly after the decision of superior authority, it is the duty of subordinate authority to implement the decision.

458


[R. 29

PART VIII

REVISION AND REVIEW R. 29

29. Revision —

(1) Notwithstanding anything contained in these

rules — (i) the President, or (ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and s Department, or (iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and 1 [Adviser (Human Resource Development), Department of Telecommunications] in the case of a Government servant serving in or under the Telecommunications Board, or (iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department, or (v) the appellate authority, within six months of the date of the order proposed to be revised, or (vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order, may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may —

1

(a)

confirm, modify or set aside the order; or

(b)

confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

Inserted by Notification No. 110/12/13/89-Estt.(A), dated 30-03-1990.

REVISION AND REVIEW

R. 29]

459

(c)

remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or

(d)

such other orders as it may deem fit:

1

[Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under Rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary:] Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, 2[Adviser (Human Resources Development), Department of Telecommunications] or the Head of Department, as the case may be, unless — (i)

the authority which made the order in appeal, or

(ii)

the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.

(2) No proceeding for revision shall be commenced until after — (i)

the expiry of the period of limitation for an appeal, or

(ii)

the disposal of the appeal, where any such appeal has been preferred.

(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.

1 2

Substituted by Notification No. 11012/15/84-Estt.(A) dated 05-07-1985. Inserted by Notification No. 11012/13/89-Estt. (A), dated 30-03-1990.

460


[R. 29


Scope of rule .................................................................................................................. 460

2.

Object and reasons of amendment of Rule 29 and insertion of Rule 29-A..................... 461

3.

Period of limitation for appellate authority to initiate revision proceedings ................... 461

4.

Variation or modification of order ................................................................................. 462

5.

Revising authority to give reasons for his findings ........................................................ 463

6.

Promotion after penalty: Penalty cannot be enhanced under sub-rule (1) .. .................. 463

1. Scope of Rule – Rule 29 gives power to call for the records of any enquiry and to revise any order. It also authorizes the authorities mentioned therein to remit the case to the authority which made the order. Such a power is the power of revising the orders ed by subordinate authorities. The authorities mentioned in the rule may confirm, reduce, enhance or set aside penalty imposed by the order. Proviso to the rule, however, impose the limitation on the (revising) authority that unless the Government servant concerned has been given reasonable opportunity of making a representation against the penalties proposed or where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Rule 11 (Major penalties), or to enhance the penalty imposed by the order sought to be (revised) to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the matter laid down in Rule 14 except after consultation with the Commission where such consultation is necessary. When the authority proposes to impose a major penalty, procedure of enquiry laid down by Rule 14 has to be followed but where the enquiry was held according to the provisions of Rule 14 and the authority proposes to enhance the punishment to a major penalty, it is not the requirement that again fresh enquiry from the beginning under Rule 14 should be held. Where originally the enquiry was held for imposing minor penalty and procedure laid down in Rule 14 for imposing major penalty could not indeed was followed in such a case if the (revising)authority proposes to impose one of the major penalties, then the proviso requires that no such penalty shall be imposed except after an enquiry in the manner laid down in Rule 14. If a proper enquiry under Rule 14 was conducted by the disciplinary authority, a fresh enquiry is not necessary in revision proceedings under Rule 29. See B.L. Kohli v. Union of India, 1974 (2) SLR 679; T.L. Anantharaman v. Union of India, 1979 (1) SLR 196; Krishan Gopal Sharma v. Union of India, 1979 (2) SLR 839: 1981 (1) SLR 775; Balkishan Soral v. Union of India, 1994 (8) SLR 481 (CAT Jodhpur). President”s power of review/revision is absolute and the Tribunal cannot interfere with it unless the exercise of the power is patently arbitrary or suffers from the vice of mala fide. Rule 29 (1) (i) and Rule 29A, CCS (CCA) Rules empower the President to enhance the punishment. G.L.Gandhi v. Union of India, 1990 (2) ATJ 176 (Principal Bench).

R. 29]

REVISION AND REVIEW

461

Powers of Revising Authority under Rule 29 are very wide. It can direct disciplinary authority to proceed under Rule 16, CCS Rules. R.K.Gupta v. Union of India, 1990 (14) ATC 628 (New Delhi). 2. Object and Reasons of Amendment of Rule 29 and insertion of Rule 29-A – In R.K. Gupta v. Union of India, 1981 (1) SLR 752 and to other writ petitions. – C.W. 196/78 and C.W 322/79 question arose before a Division Bench of Delhi High Court, does Rule 29 of CCS (CC&A) Rules 1965 (as it stood before its amendment) gives power to the President to review his own order which he had ed earlier. The Court held that Rule 29 does not permit the President and other authorities to review their earlier order. It was further held that the power of review under Rule 29 is really in the nature of a revision power to revise by an authority higher than the authority whose order is sought to be reviewed. It does not cover the case of authority reviewing its own earlier order. Accordingly Rule 29 has been amended and it has been made clear that Rule 29 confers the power of revision on the President and other authorities mentioned in the Rule and Rule 29A has been inserted empowering the President only to review any order ed earlier under these Rules, including an order ed in revision under the amended Rule 29, when any new material or evidence which could not be produced or was not available at the time of ing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to his notice. 3. Period of Limitation for Appellate Authority to Initiate Revision Proceedings – What all the appellate authority is empowered to do is to (revise) any order ed by the subordinate authority and that the appellate authority must, however, initiate the proceedings, within six months of the date of the order proposed by him to be revised and that it is not necessary under the rule to the final order of (revision) within six months of the date of order proposed to be (revised). Mere act of calling for records without anything more can certainly not be equated with initiation of a proceeding for (revision). It is only when the authority decides upon proceeding further and issues a notice to the delinquent officer calling upon him to show cause why the punishment meted out to him should not be enhanced that proceedings for (revision) can reasonably be said to have been commenced. Such a notice issued after expiry of six months from the date of order after the period of limitation cannot be issued. See Shoukata Khan v. Director of Postal Services, 1972 SLR 875. In K.G. Mohanan v. General Manager, Telecommunications, (1991) 15 ATC 920 (FB), the Central istrative Tribunal at Ernakulam has held that under Rule 29 (1)(v) of the Central Civil Services (Classification, Control and Appeal Rules, 1965), the time limit of 6 months is not applicable for the exercise of revisional power by the appellate court. The time limit applies for calling for the records of the disciplinary authority of the appellate authority, while the power of the Courts to dispose of the case in revision can be exercised within reasonable time. Entire process of revising etc., the order of the disciplinary authority must be completed within 6 months if the sentence is to be enhanced, i.e. (i) serving the Government servant with show cause notice against enhancement, (ii) [considering his representation, if any], (iii) ing the order of major penalty against him if

462


[R. 29

representation did not find favour. Naresh Kumar v. H.P. State Civil Supplies Corporation, (1989) 7 SLR 82 (HPAT, Simla). When appellate authority happens to be departmental head, it is not competent to exercise power of review. Rule 15 (A) of Police and Subordinate Services (Discipline and Appeal) Rules, corresponding to Rule 29(1), second proviso, CCS Rules was so construed in P.Sabesan v. State of T.N., (1986) 1 SLR 69. Kailash Chandra Dip v. Union of India, 1990 (14) ATC 446 (Cuttack). When revising Authority sets aside order of disciplinary authority dropping proceedings without inquiry, no opportunity to show cause is required. Rule 29, CCS (CCA) Rules does not envisage such notice, unless penalty is proposed to be enhanced. M.M. Bhandari v. Union of India, (1990) 14 ATC 642 (Jodh). Appellate authority under rule 29(1)(V) CCS (CCA) Rules, 1965 must complete the process within 6 months from the date of the order sought to be revised. The time limit relates to completion of the action enquiry and not the mere initiation of the action. H.N. Divakaran v. Collector of Customs, (1991) 2 SLR 534, 538, para 10 (CAT). Time limit of 6 months on rule 29(1)(v) governs the completion of the action by appellate authority Toney v. Director of Telegraphs, Kerala, (1976) KLT 172; Nandresh Kumar v. H.P. State Civil Supplies Corporation, (1989) 7 SLR 82. Power of appellate authority to enhance punishment imposed by the disciplinary authority to be exercised within 6 months. Entire process must be completed within 6 months. It is not enough that notice to show cause against enhancement was issued within 6 months. P. Rajaram v. Director of Postal Services, (1989) 1 SLR 445 (CAT Hyd). Under rule 29(1)(v) of CCS (CC&A) Rules, the appellate authority can revise the order within six months of the date of the order proposed to be revised. Dilbagh Singh v. Union of India, (1990) 3 SLR 760, 761, 768 (CAT Chand). 4. Variation or Modification of Order – Enhancement of punishment, variation or modification in previous order is to be made after giving opportunity to the Government servant. G.S. George v. Government of A.P., AIR 1968 AP 153; L. Samjai Singh v. Deputy Commissioner of Manipur, AIR 1968 Manipur 16. A person to whom a notice is issued to show cause why the penalty already imposed on him should not be enhanced is entitled to urge that the findings are wrong and that no punishment or enhanced punishment is called for. M. Venugopala Chetty v. Union of India, 1971 (1) SLR 853 (AP). Under rule 29(d) of CRPF Rules, 1955, the power of revision has been conferred and such power can be exercised only if there is some punishment imposed upon the employee. It has no application if no punishment has been imposed. Mahinder Singh v. Union of India, 2000(2) SLR 345 P&H.

R. 29A]

REVISION AND REVIEW

463

5. Revising Authority to Give Reasons for his Findings – The revising authority should a speaking order giving reasons in of his conclusion. Kripal Singh v. State of Rajasthan, 1980 (2) SLR 717 (Raj.). 6. Promotion After Penalty : Penalty cannot be Enhanced under Sub-rule (1) –Held, that the authorities after imposing a penalty and thereafter promoting him, cannot again ask the petitioner to show cause why the punishment which had already been imposed, should not be enhanced. It must be assumed that the authorities had condoned the misconduct against him for which he had been punished and his slate had been wiped clean. Mohammad Habibul Haque v. Union of India, 1978 (1) SLR 637.

REVIEW R. 29A

29A. Review – The President may, at any time, either on his own motion or otherwise, review any order ed under these rules, when any new material or evidence which could not be produced or was not available at the time of ing the order under review and which has the effect of changing the nature of the case, has come or has been brought, to his notice: Provided that no order imposing or enhancing any penalty shall be made by the President unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 11 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an inquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 14, subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary.


Review without power... ................................................................................................ 464

2.

Review of order of compulsory retirement ..................................................................... 464

3.

Correction of mistake ..................................................................................................... 464

464


[R. 29A

1. Review without power — An order reviewing the punishment and enhancing it, without any such power to this effect prescribed in the Rules, is illegal. K. Maruthi v. Karnataka Power Corporation Ltd., 1999 (5) SLR 125 Kar. 2. Review of order of compulsory retirement — Merely because there is no provision in F.R. 56 for review, an order of Government, cancelling an order of compulsory retirement and recalling the retired employee can not be denounced as unsustainable in law. Bishnu Boishya v. State of Assam, 2000 (3) SLR 461 Gau. 3. Correction of mistake — is not review of the order. Birendra Nath Mondal v. Vidyasagar University, 1999 (4) SLR 525 Cal. For object and reasons of insertion of this Rule see Synopsis 2 under Commentary on Rule 29.

MISCELLANEOUS

R. 30]

465

PART IX

MISCELLANEOUS R. 30

30.

Service of orders, notices, etc — Every order, notice and other process made or issued under these rules shall be served in person on the Government servant concerned or communicated to him by ed post. COMMENTARY While according to this rule the communication of an order is mandatory, in one case it was claimed that the order of discharge was communicated after a delay of 4 years and therefore the appeal was only thereafter. It was held that since the employee was neither getting any salary nor was given any duty, and he took no steps to redress, he was guilty of laches. Gurjinder Singh v. State of Punjab, 1999 (7) SLR 641 P&H (DB). Though that case arose under Punjab Police Rules, it is to be seen if this rule can be relied by a person to explain the delay.

31.

Power to relax time-limit and to condone delay — Save as otherwise expressly provided in these rules, the authority competent under these rules to make any order may, for good and sufficient reasons or if sufficient cause is shown, extend the time specified in these rules for anything required to be done under these rules or condone any delay.

32.

Supply of copy of Commission”s advice — Whenever the Commission is consulted as provided in these rules, a copy of the advice by the Commission and, where such advice has not accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the Government servant concerned along with a copy of the order ed in the case, by the authority making the order.

33.

Transitory Provisions — On and from the commencement of these rules and until the publication of the Schedules under these rules, the Schedules to the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, as amended from time to time, shall be deemed to be the Schedules relating to the respective categories of Government servants to whom they are, immediately before the commencement of these rules, applicable and such Schedules

466


[R. 34

shall be deemed to be Schedules referred to in the corresponding rules of these rules. R. 34

34. Repeal and Saving — (1) Subject to the provisions of Rule 33, the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, and any notifications or orders issued thereunder in so far as they are inconsistent with these rules, are hereby repealed; Provided that — (a) such repeal shall not affect the previous operation of the said rules, or any notification or order made, or anything done, or any action taken, thereunder; (b) any proceedings under the said rules, pending at the commencement of these rules shall be continued and disposed of, as far as may be, in accordance with the provisions of these rules, as if such proceedings were proceedings under these rules. (2) Nothing in these rules shall be construed as depriving any person to whom these rules apply, of any right of appeal which had accrued to him under the rules, notification or orders in force before the commencement of these rules. (3) An appeal pending at the commencement of these rules against an order made before such commencement shall be considered and orders thereon be made, in accordance with these rules, as if such orders were made and the appeals were preferred under these rules. (4) As from the commencement of these rules any appeal or application for review against any orders made before such commencement shall be preferred or made under these rules, as if such orders were made under these rules; Provided that nothing in these rules shall be construed as reducing any period of limitation for any appeal or review provided by any rule in force before the commencement of these rules.

COMMENTARY SYNOPSIS

MISCELLANEOUS

R. 35]

1.

Central Civil Services (Classification, Control and Appeal) Rules, 1957 ...................... 467

2.

Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952 .......... 467

3.

Effect of sub-rule(1) ....................................................................................................... 467

4.

Pending proceedings ...................................................................................................... 467

467

1. Central Civil Services (Classification, Control and Appeal) Rules, 1957 — These rules have been repealed by Rule 34. H.L. Mehra v. Union of India, AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396: 1974 SLJ 379: 1974(2) SLR 187: 1974 Lab IC 984. 2. Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952 — These rules have been repealed by Rule 34. Kishan Ram v. Union of India, 1974 SLJ 18. 3. Effect of Sub-rule (1) — Rule 34 (1) makes the new rules applicable to all those persons who were appointed prior to the coming into force of the new rules and to whom the old rules apply. The rights to the extent saved are detailed in the proviso. It is not necessary when the rules are repealed and replaced by another set of rules that there should be a specific mention that by virtue of new rules, all the previous rules are thereby repealed. There is nothing to suggest that Rule 34 saves old Rule 55-B by mere reason of absence of reference to Rule 55-B in the new rules. Purshottam S. Irani v. H.M. Singh, 1977(1) SLR 636. 4. Pending Proceedings — Rule 34 which repeals the Rules of 1957 provides in proviso (b) for the application of these Rules of 1965 to pending proceedings. H.L. Mehra v. Union of India, AIR 1974 SC 1281: 1975(1) SCR 138: 1974(4) SCC 396: 1974 SLJ 379: 1974(2) SLR 187: 1974 Lab IC 984. R. 35

35.

Removal of doubts — If any doubt arises as to the interpretation of any of the provisions of these rules, the matter shall be referred to the President or such other authority as may be specified by the President by general or special order, and the President or such other authority shall decide the same.

____

36616068-cca-cca-rules-commentary.pdf 5n5062

Overview 26281t

More details 6y5l6z

More Documents from "Kavita thakur" 50592g

36616068-cca-cca-rules-commentary.pdf 5n5062

Top 10 Richest Person In India 2016-17 4e3t6z

Adaptrack Specification 953p

Loan Syndication State Bank Of India 55r52

Agro Processing Sector In India 13s2p

Broadcasting Codes Of Air/dd 43p5i